Fordham Report 2014: Perspectives from Intellectual Property Pioneers

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

Following hotly on the heels of Jeremy's posts on the introductory session's of yesterday morning's conference the pre-lunch session yesterday saw the pioneers of intellectual property law take the stage.  After a brief introduction by Professor Hugh Hansen describing the panel as "barons of IP law", it was Hon. Pauline Newman of the U.S. Court of Appeals for the Federal Circuit (CAFC)  up to bat.

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 aftermath of the Vietnam War was a devastating time for the US.  There was a severe industrial re-entrenchment - redundancy, high unemployment.  Science and engineering was particularly hard hit.  Since the first time since its foundation the US had a negative balance of trade.  IP rights had powerful critics then as now.  There was a vigorous anti-trust attack on the patent system through the Department of Justice.  Industry blamed the government for piling on disincentives for industrial growth and activity.  President Jimmy Carter, Judge Newman noted, was really the hero of this story.  He was himself a business man - not many presidents had been in business.  He convened a study through the then Secretary of Commerce that established a commission in charged with analyzing the industrial change of the investment in the direction of new products and methods to see whether there were areas national policy and law in which changes could be beneficial. Carter recognized this industrial investment as the future of the US's economic well-being.  The Carter Commission held hearings and conducted studies all with the view of increasing industrial activity.  The goal was in achieving a reliable patent grant on which industry could rely knowing that they would not easily lose the patent in court or be subjected to copying.  Thus was born a stricter examination process which has culminated to where the US patent examination procedure is today.

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

Our dear blogmeister Jeremy Phillips came to podium with 41 years of experience in IP in his belt and introducing "Phillips's Three Rules of Change".

1.  Changes happens whether you want it to happen or not
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

Back 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.

::Snort:: Chemistry joke!

Jeremy observed that now we are facing a huge explosion of IP rights and overlapping rights.  IP has become an asset class - with the valuation and securitzation of IP rights.  You can study IP wherever you want to now with increased specialization. There has been a notable transition from rule of secrecy to transparency.  Jeremy recalled that in the 1970s there were two years that WIPO did not allow UN auditors to see the books.   Jeremy also had to make two separate trips to Alicante to get permission to see decisions from OHIM.  Ministers are now embracing social media. Two years ago WIPO had no social media policy, and now they are retweeting IPKat tweets.  Consumers have more choice (think of grey goods and parallel imports).  Increasingly consumers of IP are producers of IP.

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

IPKat readers will note that Mr Justice Arnold has followed suit in his recent referrals, the Actavis v Sanofi judgment being one such instance.  The AmeriKat is unsure what difference this has really made in the quality of the decisions from the CJEU.

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

Justice Annabelle Bennett of  the Federal Court of Australia started her speech noting she has just completed Day 200 of the Apple v Samsung case with no hint of exasperation.  She noted that the biggest change in IP in Australia was that there was now a specialized patent panel.  When the court tried to dismantle the panel in Melbourne all cases were filed in Sydney with the result that the Melbourne specialist panel has now been reconstituted.  She also observed that with the docket system there has been very effective case management decisions to try and reduce the hearing as much as possible working with counsel.  She considered that the Australian case management rules were pioneering with the UK adopting similar case management rules.

"Hey! Who moved my papers?!"
Judge Chin musing on
file storage in the Second
Circuit

Hon. Denny Chin of the U.S. Court of Appeals for the Second Circuit, New York noted that 20 years ago he did no IP law, which was typical.  Echoing Judge Newman's sentiments he does not feel that this lack of IP specialist experience is necessarily a bad thing.  "Time has stood still for us in the Second Circuit, " Judge Chin observed, "as we are communicating by fax and storing our file in plastic containers."  He noted that judges are not always savvy about technology but are trying to learn the technology.  He cited Tuesday's Supreme Court hearing in the Aero case noting that counsel were trying really hard to develop analogies that helped the judges understand the technology.

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.