Fordham 27 (Report 11): Views from judicial decision makers

A "wisdom" of judges

For those who were brave enough to wake up early for the Sunrise Sessions, the largest panel of the Fordham IP Conference was not the first of their day, but for those who were bleary eyed following the Thursday evening socializing it was sure to have woken them up.

Over to guest Kat, Alexander de Leeuw (Brinkhof) for the report on the judge's panel:  

"Day 2 of the Fordham IP Conference had a great start with a panel full of IP judges from all over the world. Although some of the judges were skeptical about whether or not to enjoy this session, the audience certainly appreciated the entertaining ‘cross-examination’ by Hugh Hansen (Fordham University School of Law). A warning from Hugh before reading any further: “this is purposefully non-substantive!”. The report below includes some of the highlights of the session.

After congratulating Sir Robin Jacob (former Lord of Justice of Appeal of the Court of Appeal, London) on his birthday – and after Robin Jacob informed Hugh that a collection of judges is known as "a wisdom’ – Hugh asked him about the future of the UPC. According to Robin “it is still on at the moment. Unless it becomes impossible, it will happen.” Robin further stated “I predict you will have it on the program next year. It is this year or not at all.” During a later part of the session Klaus Grabinski (Federal Court of Justice) noted that he is “still confident that the UPC is going to happen.” He expects a decision about the complaint launched at the Federal Constitutional Court  to be rendered this year.

Next in line was Gordon Humphreys (Chairperson Boards of Appeal EUIPO), who was asked about what efforts he takes to ensure uniform application of the law. Gordon indicated that this is “one of the big challenges we have.” He further indicated that together with TM5 and ID5 groups he has been looking into international exchanges between decision makers (in for example Europe, China, Japan, and South Korea), developing contacts with trial and appeal boards in those countries. Internet evidence in the context of trademarks and designs was mentioned as an example of topics on the agenda.

Hugh then moved on to Edger Brinkman (District Court of The Hague) who was questioned about the pros and cons of having a chemistry degree as an IP (mainly patent) judge. Throughout the conference criticism was raised regarding the functioning of the patent system and Edger commented that “one of the problems may be that people envisage patents in combination with the pharma industry and high health bills. It is hard for people to understand why patents are necessary. Maybe industry should try a little bit more to explain why drug prices are high, for example.” Simon Holzer (Swiss Federal Patents Court) agreed that the patent system is under pressure due to drug prices. “We don’t have a proper system for determining how much new pharmaceutical treatment should cost. What is a fair price? That is the main problem, but that is not particularly a patent problem.”

Paul Michel (Former Chief Judge at U.S. Court of Appeal for the Federal Circuit) started out by stating: “I resigned my lifetime appointment in order to redeem my first amendment right of free speech.” Paul spoke about his efforts to try to create a more informed discussion about the facts and realities of patents instead of propaganda that often finds its way into (public) debates. According to Paul, “things will continue to get worse until they get so bad that high level policy leaders will see they have to revise the patent system” an example of which would be the relocation of jobs to other countries.

Annabelle Bennett (Former Judge of the Federal Court of Australia, Sydney) could not have been clearer about her views on this this session: “I hate this panel, we all do”. Hugh responded “you know that just makes me feel good inside”, which according to Annabelle is exactly the problem. Annabelle spoke briefly on her role as chair of WIPO, explaining that the “idea is to bring IP judges together to be able to talk to each other on the concept that judges will talk more freely with other judges and be more open to express their concerns.” She deems this particularly helpful for judges in developing countries who can borrow expertise by reaching out to more experienced IP judges.

The most memorable quote of the session perhaps came from Lennie Hoffmann (Former Second Senior Lord of Appeal in Ordinary), who proposed Hugh to ask him whether he still takes an interest in IP. After following up on this request, Lord Hoffman responded “I am just interested in my successors [messing] up various bits of the law which I thought I had straightened out”. A surprisingly funny ending to a highly entertaining – despite being purposefully non-substantive –  session."