The debates on the merits or otherwise of specialised IP courts is a raging one. Imagine my delightful surprise when I chanced upon a piece penned more than 50 years ago! One of the most cutting critiques of specialist courts ever; penned in prose that is at once powerful and poetic! Old is certainly gold and it’s a pity that we don’t turn to history more often! Sample this:
“Against the citadel of the expert, I tilt no quixotic lance.”
What a delightful turn of phrase by Judge Rifkind (and one that I liberally adapted for the title of this piece). Anyway here goes the passage in full:
“Periodically one hears the suggestion that patent cases should be tried before patent judges. The proposal takes a variety of forms, but they revolve about the proposition that the judicial product of patent litigation would be improved, if the trials were conducted by judges specializing in patent cases.
I deny this pivotal proposition; consequently I am opposed to patent courts or patent judges.
The highly industrialised society in which we live has a great appetite for “know-how”. Such a society elevates and aggrandizes the position of the expert. His is the voice with the ready answer. His opinions become the facts upon which lesser mortals risk life and fortune.
Against the citadel of the expert, I tilt no quixotic lance. My contention is that the judicial process requires a different kind of expertise – the unique capacity to see things in their context. Great judges embrace within their vision a remarkably ample context. But even lesser men, presiding in courts of wide jurisdiction, are constantly exposed to pressures that expand the ambit of their ken. Patent law does not live in the seclusion and silence of a Trappist monastery. It is part and parcel of the whole body of our law. It ministers to a system of monopolies within a larger competitive system.
This monopoly system is separated from the rest of the law not by a steel barrier, but by a permeable membrane constantly bathed in the general substantive and procedural law. “
For a more recent critique of specialist courts, see this piece by Justice Diane Wood, where she takes on the exclusive patent jurisdiction (albeit appellate) of the US CAFC (Court of Appeals for the Federal Circuit) and notes… I extract just one biting bit from her blistering critique:
“The “central purpose” of the Act [creating the CAFC]….. was “to reduce the widespread lack of uniformity and uncertainty of legal doctrine that exist[ed] in the administration of patent law”……Of course, uniformity says nothing about quality or accuracy. A broken clock tells the time with impeccable uniformity: the only problem is that it is right only twice a day.”
The point of this post is not merely to throw a few delightful IP nuggets your way, without more. Rather it is to set the stage for a delectable debate around the recently enacted Commercial Courts Act….and to ask to what extent it might help (or hinder) the “efficient” and (dare I say) “fair” dispensation of IP justice? So watch this space for more!