Patent Publication

Specialised IP Courts: A Global Perspective from the ICTSD


expertIn a number of earlier posts (here, here, here and here), I tackled the issue of specialised IP courts in India. All of these were part of a more comprehensive piece for the ICTSD which just released its report on specialised IP courts.

The lead paper is by the prolific Professor Jacques de Werra, followed by country specific analysis as below:

Brazil (Denis Barbosa/Pedro Barbosa); China (Hong Xue); India: Shamnad Basheer; Uganda (Susan Strba)

Here is an introductory note to this study from the ICTSD website:

The second issue of the Series Global Perspectives and Challenges for the Intellectual Property System -a CEIPI-ICTSD joint publication- deals with issues and challenges around specialised intellectual property courts. The diversity of special tribunals is remarkable. The courts may have jurisdiction over controversies related to all aspects of intellectual property rights or simply with respect to certain intellectual property categories. 

Professor Jacques de Werra (University of Geneva) wrote the lead article of this second issue. As highlighted by the author, under the TRIPS Agreement countries have the option to create specialised intellectual property courts and on this basis, countries are free to decide what types of judicial body or bodies have the jurisdiction to hear disputes. In this respect, the experience in both developed and developing countries varies. Jacques de Werra concludes that how advantageous or necessary it is to establish specialised courts in a given jurisdiction depends on a number of factors that go beyond intellectual property. Rather, this determination should take into account more general factors, including economics, the legal system and societal characteristics. Thus, the creation of specialised IP courts cannot be recommended in all circumstances. 

The lead article is complemented by important contributions made by distinguished scholars on the current situation on specialised courts in the jurisdictions of Brazil, China, India and Uganda.” 

For those of you looking for a decent global perspective on specialised IP courts, this is it. You can download the entire report here

On the India portion specifically, I’ve leaned in favour of specialised benches at the high courts; and proposed amendments to the present framework of the commercial courts act. As I note at the end:

“To the extent that some form of IP specialisation in IP dispute resolution is desirable, I lean in favour of a specialised bench within existing High Courts. While the Commercial Courts Act is a step in the right direction, it does not go far enough in terms of creating a robust framework for cultivating specialised expertise. Neither does it ensure that specialised IP judges experience an eclectic range of legal issues that enlarge their vision and pave the way for a more holistic IP jurisprudence that optimally balances private IP rights against the larger public interest.”

Would be great to hear back from those of you who’ve thought through these issues. 

ps: Image from here.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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