The never-ending story and the Robin that roared

Last night the Right Honourable Lord Justice Jacob gave delivered the 11th Burrell Competition Lecture in the pleasant surroundings of the Royal College of Surgeons of England, Lincoln’s Inn Fields, London. This event, organised by the Competition Law Association, has been in the past associated in the IPKat's mind with two things: (i) what IP lawyers say and (ii) what competition lawyers don't say. This year it was the turn of the "I speak the truth" wing of the IP fraternity, with Lord Justice Jacob holding forth on the theme, "The monopolists v the anti-monopolists--a never-ending story". The title theme, he explained, came from an observation by the venerated competition lawyer Sir Jeremy Lever, who observed that, while Sir Robin was a monopolist, he was an anti-monopolist.

The thesis of Sir Robin was that, if one considers the attitudes taken by the judiciary towards the enforcement and the regulation of IP monopolies, there is a bipolar effect: the pendulum swings between hostility towards the enforcement of IP rights and a reluctance to consider any activity which falls within their scope as being anything other than infringing. Taking an historical view of judicial attitudes in the United Kingdom and the United States, he sought to describe the motion of this pendulum, identifying and contrasting three principal species of law:

* laws that actually control monopolies;

* laws that offer a defence against an attempt to enforce monopolies (in Europe, the so-called 'Euro-defences')

* laws that provide a check on the enforcement of a specific IP right.

According to the evening's blurb, "The occasion will be extremely enjoyable and of interest to all lawyers, economists, business people and others with a keen interest in competition and IP law". Not necessarily so, says the IPKat. It should have made many competitionists cringe at the apparently random and piecemeal manner in which the law has sought to interfere with the misuse and nonuse of IP rights: a theme that pervaded this year's lecture was the lack of predictability and stability that businesses must face as the pendulum -- driven as much by the human prejudice of judges and East Texan juries -- swings inexorably from one extreme to the other.

Right: competition lawyers attempting to eviscerate yet another intellectual property monopoly

Not surprisingly, given Sir Robin's professional interests and experience, his examples were drawn mainly from intellectual property law itself and from patents. His best line was reserved however for reports of the competition authorities which, he observed, were "about as thick as a telephone directory -- and almost as interesting".

All in all, this was a most enjoyable evening, for which the organisers should be congratulated. The best way to encourage them, if you enjoy contemplation of the IP/competition law interface, is to join the Competition Law Association by following the link above (or its parent, the International League of Competition Law).
The never-ending story and the Robin that roared The never-ending story and the Robin that roared Reviewed by Jeremy on Tuesday, February 26, 2008 Rating: 5

1 comment:

  1. I've just read a transcript of Jacob's lecture (CIPA journal, March), and I'm unimpressed by some of his comments:

    Jacob wrote:

    'There ís now amongst many a major concern that IP rights have gone too far and ought to be kept in proper check. There is concern also that the patent offices of the world simply cannot cope with the rising tide of patent applications - examiners give in to applicants too easily for their jobs would not be possible otherwise. And that is so even though the USPTO costs $2bn on top of the fees it takes in.'

    As I understand it, the last sentence is not true. Rather, the USPTO is entirely funded by fees from applicants. See, for example, the USPTO annual reports (freely available on the USPTO website):


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