EPO Bound again - more precedental than ever: Precedent 2

The IPKat was very heartened by the responses to the post on Tuesday on the concepts of "precedent" and "binding nature" at the European Patent Office.  While all commenters did not agree, with him or with each other, taken together he thought the comments very constructive, particularly since he knows from previous posts and comments how emotive this subject can be.  There are a number of points on which he would like to follow up, now that he is safely back from the IPKat drinks (on which subject thank you to all who made the effort to turn up - it was wonderful to see so many of you - you know who you are).

1. Divided by language - is there a "gulf of understanding"?

IPKat explores the gulf
of understanding

What concerns the IPKat is this.  Presumably practitioners at the EPO know how the system works.  We use it on a daily basis.  The problem is that in this respect we don't have a common language to describe it.  Practitioners such as this Kat in the UK use terms such as "precedent", not necessarily intending it to carry the full weight of its common law heritage; others soemtimes attack the term, but not necessarily the underlying intended meaning.  It seems to this moggy that we agree on a lot (as of course we must because we are all in fact describing the same EPO systems) but are struggling to find a common vocabulary to express it. So what the IPKat is trying to do is get behind the jurisprudential theory to describe meaningfully and accurately how things work in practice.

MaxDrei asked "Does not this thread (thus far) reveal a gulf of misunderstanding, between the English patent law world and everybody else?" This Kat does not think so, but rather that there is lack of agreed language to express an understanding that this Kat remains convinced is largely shared even if not fully acknowledged.

2. Legal certainty

The previous post was primarily concerned with practice - how does a practitioner argue a case and how does a tribunal decide it.  It only briefly alluded to the other reason why the topic matters, which is legal certainty.  It also was primarily about attempting to describe the situation as it exists rather than opine as to how it should be.  Delving now into these two areas:

Consider two extreme situations (without necessarily suggesting that either of these corresponds to a real legal system that exists in any real jurisdiction).

In a system with a strong system of precedent and large body of caselaw, a practitioner will be able to advise a client of the likely outcome of a case with a strong degree of confidence, because the decision of a tribunal will be highly predictable.

In a system with no precedent, where the tribunal is free to decide the case before it on the basis of the statutory text alone, then, even if there is a substantial body of decided cases, there will be a higher degree of uncertainty as to how any particular case will be decided.

A rational client will only pursue a case with a reasonable chance of success.  The more predictable the system is, the less unnecessary litigation there will be; if the system is highly unpredictable, then there is a reasonable chance of success in more cases that are borderline.  Such cases be less borderline in a highly predictable system and so some would therefore not be pursued.

Therefore, an understanding of how prior decisions affect outcome of later decisions, and ideally a shared vocabulary to articulate this, is important to allow practitioners to properly advise their clients, and this should have the result of reducing unnecessary litigation.

This form of legal certainty is important for legislators too.  When there is a strong system of precedent, it is easier to discern how the law is working, and if necessary legislate to change it.  If decisions are more capricious, it is harder to see any underlying trends, and act to prevent undesirable ones.

3. An Answer to MaxDrei - the limitations of binding precedent

This is not what Merpel meant
by "bound by precedent"

In the third comment, MaxDrei asked whether concepts such as "technical" are better defined in a precedentally binding manner, or whether a degree of fuzziness at the margin of patent eligibility is preferable.  For complex matters, this Kat thinks that a degree of fuzziness is much preferred: bright line rules for complex matters tend not to work well in all situations.

Moreover, precedent can become very unhelpful if the precedent itself frequently shifts.  In the USA, the highest court seems to be changing the boundary of patent eligibility every few years, and this does not seem to help anyone.  It is not just about the system, it is also about how you use it.

4. A further view

The IPKat was delighted to receive this email comment from Mr. P.E. (Paul) Mazel of TRIP Advocaten en Notarissen in the Netherlands, which gives a view from the perspective of the motivation of a person deciding a case.  With permission, the comment is reproduced here:

Thanks for your interesting blog on precedents and EPO. Being not only a practitioner but a honorary judge in an appellate court (and sometimes arbitrator) as well I would like to comment on the use of the word mentioned above. Often a decision of – say the Dutch Supreme Court – is not persuasive at all (let alone binding) and ‘I’ would like to decide otherwise in a case at hand.  However, one should realize that ‘my’ decision might be appealed and thus the question arises: will the Supreme Court (or the ECJ) changes its mind if there is a (non-binding) precedent. One of the issues to be considered in that respect is how old the precedent is. If it is old enough – say 5+ years – and met some criticism it is easier to diverge than when it is young and met universal acclaim. Is there a cue, for example from an opinion of an Advocate-General, that the Supreme Court might change its course?
You also consider the capacities of the parties: can they “easily” afford the costs and time involved with an action before the highest court? How important – financially, principally - is the matter raised? Were the proceedings initiated by both parties to get a landmark decision or is it just an ordinary case which happened to be blessed with some more interesting aspects?
But finally it is your gut feeling which alone is imperative for your decision: if you feel a precedent leads to a unjust decision, do not follow it. It has been said of the Dutch Supreme Court that it shoots first and then draws the target. This might apply to many more instances – including the BoA of the EPO. But perhaps not to the Courts of England and Wales. 

This comment, as well as some of the comments on the original post, illustrate how a judge is motivated to decide a particular case in a non-precedental system.  Returning to expressing an opinion rather than being simply descriptive, this Kat likes the dictum "if you feel a precedent leads to a unjust decision, do not follow it", and dislikes the situations (which nevertheless seem not to be that common) where a tribunal is forced to an outcome that it does not wish for under the weight of a binding precedent that it does not agree with.