From March to September 2016 the team is joined by Guest Kats Emma Perot and Mike Mireles.

From April to September 2016 the team is also joined by InternKats Eleanor Wilson and Nick Smallwood.

Monday, 28 March 2016

Book Review: Sir Robin Jacob tells us a story about "IP and Other Things"

The AmeriKat's copy of Sir Robin's book
Not many books start with "Richard Arnold said...".   But those three words grace the opening page of Sir Robin Jacob's IP and Other Things, a 500-page collection of the famous judge's essays and lectures.  Instead of merely publishing bygone lectures, Sir Robin adds new postscripts and commentary which illuminate how his views on the law and practice of IP have changed.  But there is a decidedly human element to the collection; each essay and lecture provide a vehicle for Sir Robin to share his personal story at that point in time.  It would therefore be incorrect to characterize IP and Other Things as a mere collection of IP law over time, but more properly an IP autobiography of one of the field's most prominent and outspoken figures, whose career has spanned over 50 years (half of which has been devoted to the bench, first as High Court and then in the Court of Appeal).

Over the past two months, the AmeriKat has been delving into its chapters filled with stories and lore from the judicial world and famous IP cases.  Although helpfully organized in parts, with dedicated sections for patents, trade marks and copyright, the book's organizational structure should not disguise a key fact:  story telling is at its heart.  Sir Robin is a story teller and IP and Other Things is a story not just of his life in IP, but of his life.  Anyone who has met or heard Sir Robin speak knows that he often commences a statement with "I am old enough to remember [insert a now long-forgotten case, judge or law]...".  With that introduction he will then entertain the audience with tales of a court room success (or inexplicable loss) from decades ago which, now, has surprising applicability, or is proposed as a solution, to the present day issue that the audience had gathered to discuss.  His published  essays and lectures reflect this knack for story telling - an art form that the AmeriKat  feels can sometimes be lacking in IP advocacy nowadays (on which the AmeriKat is reminded of Judge Alex Kozinski's remarks at last year's IBIL Sir Hugh Laddie Lecture about the benefit of IP advocates telling a story - see video here).

IP and Other Things starts in earnest with the record of  his Address of Welcome in 1993 when Sir Robin was elevated to the bench.  Readers are then taken back in time to Sir Robin's early academic years where his battle with Natural Sciences at Cambridge led him to a fateful decision to pursue law.  His glowing 2009 speech about the virtues of Trinity College to the Trinity College Cambridge Lawyers Association, ends in Sir Robin confiding to readers that "[a]ctually I was not all that happy at Trinity.  College was fun but the work was too hard for me.  I tried but found the science difficult."  Such an early confession from one of the most famous patent judges, alerts readers that this collection of essays is different.

From here, the narrative takes readers on a journey through general legal practice and general IP with quips such as "Rambo lawyers are one of the menaces out there...they never know when to quit" to "[t]he shrillest voice sort of won in relation to criminalisation of design infringement, though in the end it was reduced to deliberate infringement and confined to registered designs only.  It should not do much harm (or any good)."  Many more provocative comments lace the pages on topics ranging from the inability of competition law to cope with IP rights (see Chapters 8, 19, 20 and 21), to copyright and globalization (Chapter 40) and trade marks (Chapters 36-38).  No matter your IP specialty, there is something in there for everyone (especially students who are looking for a book to  make IP practice really come alive after one too many readings of Biogen v Medeva or General Tire).

Of most interest to the AmeriKat, of course, were Sir Robin's chapters in Part IV on the patent system and, in particular the Unified Patent Court.  Chapter 31 sets out Sir Robin's 2005 Fordham paper about why everyone gets patent litigation wrong and what should be done about it.  In it he tells a story about a Maritain visiting earth who is flummoxed as to why humans have developed a patent law that leads to a diversity of protection and decisions for essentially the same invention and a litigation system which only teaches well-reasoned Martians what not to do.  At the end of the paper is a list of eight recommendations which outline what is necessary to create a successful patent litigation system from scratch, most of which Sir Robin notes are present in the UPC.  The postscript also provides Sir Robin's personal list of solutions to fix the flaws in the US patent litigation system. However those recommendations are vastly outnumbered by his comments on the UPC in Chapter 25 entitled "The Perfect Patent Court", where he identifies the split structure of local and central divisions as a likely cause for forum-shopping and unpredictability of decisions.  However, he notes that the Rules of Procedure and the judges will be the UPC's saving grace, noting that as Chairman of the Advisory Committee on selection and training of judges "we are spoilt for choice and have the best patent judges of Europe applying."

IP and Other Things concludes with a collection of personal stories and tributes to the individuals who have most influenced Sir Robin, including Antony Walton QC (his second pupil master), Thomas Blanco White QC (his head of chambers at 8 New Square), Sir Hugh Laddie and Cyril Glasser.

Unfortunately, Parts IV, V, VI, which deal with substantive IP rights and practice, loses the personal touch and insight that the early and final chapters possess.  For some it may be a bit slow-going, but for those looking for IP analysis, these chapters will not disappoint.  Each chapter raises questions of debate and principle including second medical use protection, scaling back the multiple functions of a trade mark and the spread of bad ideas in copyright.  And although the AmeriKat is certain that many readers will not agree with what Sir Robin has to say on these issues, part of the fun of this book is imagining Sir Robin leaning forward from the bench, intensely staring straight into your eyes and asking "So, what is your answer, then?".  And that's another great thing about this book - in the comfort of your home you can have a debate with Sir Robin, without feeling embarrassed when you are unable to come up with an erudite, "Robin proof" retort.   When it all gets too much, all you have to do is close the book until you are ready for your next lesson in IP and life.

IP and Other Things:  A Collection of Essays and Speeches by Robin Jacob is published by Hart Publishing (Bloomsbury).  According to Amazon, people who have purchased Sir Robin's book have also bought The Unitary EU Patent Systems and Innovators:  How a Group of Inventors, Hackers, Geniuses and Geeks Created the Digital Revolution (see link here).

No comments:

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':