|Unlike in the Oregon Trail, IP Pioneers nowadays|
are less likely to die of dysentery in their pursuit
of their gold - the holy grail of balance
Judge Newman commenced by stating that pioneers lead the charge when there is something wrong with the status quo. "Pioneers", she said, "do not pick their time." Her designation on this panel as a pioneer was as a result of her role over 30 years ago with the creation of the Court of Appeals for the Federal Circuit and for a number of other things were dramatic changes of the patent system. All of these changes, she explained, were products of the time. Judge Newman observed that she was persuaded that the time has arisen again: "During the period of the current regime, there has been dramatic changes in science and technology and trade. Some changes are welcome and some changes have gotten us to a point where it may no longer be appropriate to squeeze the present into the laws of the past."
|Judge Newman - still|
smiling at the hope of
a better IP future
The plan with the CAFC was that it would be a diverse court. It was not aimed as being a specialist court - only 12% of the cases were patent cases. The CAFC was assigned and heard contractual and constitutional claims and claims against the the US Government. The outcome of many decisions in the CAFC on patent cases were policy based, not rooted in a deep understanding of patent law. This, Judge Newman noted, is a mixed-blessing. Judge Newman cast doubts that a court of last resort which the CAFC was intended to be should be so specialized it would lose sight of policy.
Although recognizing there are still criticisms of the CAFC, Judge Newman concluded:
"When I look back at the position when we started, it is so much improved and better. All I can do now is to encourage us to be faithful to the purpose of our law and continue to pioneer and to make the changes, With this room full of leaders international and national, I am optimistic."
|Jeremy Phillips - shaking up the |
IP world with sharp analysis
and casual humor since 1973
1. Changes happens whether you want it to happen or notBack in 1973, the Patent Cooperation Treaty was still 5 years from coming into effect and national patent offices did their own thing. The Madrid Agreement was all in French and ignored. It was the year of Williams & Wilkins v U.S. relating to the whether the photocopying machine would put the publishing industry out of business. Patent decisions were kept in cardboard boxes - if someone put the box away in the wrong place that was the end of your search. There was no literature, no blogs, no journal to think of. Institutionally there was no INTA, AIPLA or even the Fordham IP Conference.
2. When the world changes the absence of legal change is also change
3. Change appears much faster when it has already happened and then when you are awaiting for it to arrive
|::Snort:: Chemistry joke!|
Much has changed and for the better. Jeremy concluded that from where it started the IP system has greatly improved - ranking it as a "2" in 1973 to a "7.5" now- but there is a lot further to go. Jeremy noted that one of the most exciting developments he has seen was the newly refreshed Patents County Court (now the Intellectual Property and Enterprise Court) which has made access to high quality and efficient IP courts much more accessible. He also noted that the quality of IP decisions from the courts have greatly improved due to better instructed counsel ("Surely it is the solicitors who are keeping those barristers in check", says the AmeriKat) who understand the issues and can focus the case on the key issues.
On the "must improve" section of the IP Report Card were three things. First, Jeremy noted that there is a gap between courts that have rigorous case management and those courts who do not with the effect that IP cases without effective case management are unwieldy, overrun with issues which are not important to the case resulting in meandering and obtuse decisions. Second, policy makers have seemed to have left ethics and moral principles completely out of the philosophical underpinnings of IP policy. You will not find a phrase in any policy document that says "it is wrong to copy". Third, Jeremy awarded an "absolute 0" grade to the the CJEU stating that although there are judges sitting at the CJEU who are excellent in many respects, their familiarity of commercial law is close to zero. This inexperience coupled with vague compromised judgments given in the abstract has made it impossible for national courts to interpret and apply their decisions.
When asked by Hansen about his thoughts on Sir Robin Jacob, Jeremy said that:
"Robin is an icon and a star. He did something that a lot of us appreciated which was when referring questions to the CJEU told them what the answer at the time he asked the question. References from other countries do not do that."
|Wim van der Eijk observing how|
much the EPO empire has grown
Wim van der Eijk , the Vice-President Directorate-General Appeals, Chairman of the Enlarged Board of Appeal, European Patent Office summarized the appeal process at the EPO and noted that last year marked the 40th anniversary of the signature of the European Patent Convention. The EPO started with 100 staff and 30,000 patent applications with cautious optimism that the EPO would succeed. Now the EPO has 7,000 staff members and 240,000 applications with 65% of applications coming from outside Europe. It is one of the biggest actors in the PCT with 40% of the workload. The Appeal Board now deals over 2,000 appeals. After summarizing the future developments, van der Eijk noted that he is optimistic of the future of the unitary patent and Unified Patent Court. This would be the first of many optimistic comments on the UPC during Thursday's sessions.
|Justice Annabelle Bennett proving |
that just like birds in flight
she can keep going in court
after 200 days
|"Hey! Who moved my papers?!"|
Judge Chin musing on
file storage in the Second
John Temple Lang from the Brussels office at Cleary Gottlieb Steen & Hamilton LLP observed that the delay in setting up the Unified Patent Court has distracted from necessary changes in substantive law that need to be made as soon as possible. He felt that the setting up of the court is extremely unsatisfactory. He considered that the UPC will only work with active case management of judges and there is serious concern that judges will be experienced enough to fulfil this task.