Book Review: Intellectual Property and the Judiciary

Intellectual Property and the Judiciary, edited by Christophe Geiger, Craig Allen Nard and Xavier Seuba, is a comprehensive collection of chapters that explore the role of the judiciary in the elaboration and implementation of IP law.

The list of contributing authors displays an impressive selection of practitioners and academics from across the world, which enables the book to engage in comparative exploration of various national, European and international judiciaries, examining both common law and civil law approaches, with integrity.

In the introduction, the editors describe the objective of drawing conclusions on the optimal design of the judiciary as well as on the training of  members of IP courts, and was inspired by the 2016 European Intellectual Property Institutes Network (EIPIN) conference.

The book is structured in three parts. The first part focuses on IP and the EU courts, the second looks at IP and the Courts in US and Japan, the third part covers IP and international adjudication.

Part 1: IP and EU Courts

The first part is organised into 4 sections. The first section titled IP and the European Court of Human Rights (ECtHR), features three chapters that address the rise in human rights arguments in the decisions of the CJEU. In the first chapter Geiger and Izyumenko explore everything from freedom of expression, privacy, moral rights considerations to right to a fair trial. They argue that the developments, including the the obligation of the EU to accede to the European Convention on Human Rights (ECHR) in the future, highlight the need for IP lawyers and judges to rethink and study more carefully the role of the ECtHR practices in relation to IP.

The second section focuses more specifically on the CJEU with 3 chapters. The third section provides 3 chapters considering IP and the Unified Patent Court. The fourth section offers 5 chapters on IP and EU quasi-judicial bodies, such as the EU Patent Office, Community Plant Variety Office Board of Appeal, and the EU Intellectual Property Office.

Part 2: IP and Courts in US and Japan

The second part of the book turns to assess American and Japanese courts, in three chapters. The first chapter authored by two US judges The Honorable Kathleen O'Malley and The Honorable Barbara Lynn, aims to provides insights on the structure of patent litigation in the US with a view to informing the development of the UPC. The chapter includes several suggestions on structural and procedural practices from fostering collegiate relationships between judges, to being vigilant against unintentional biases arising from the need for a robust budget to finance a robust patent system.

The second chapter provides a comparative analysis of the US and Japanese systems for adjudicating patent cases, focusing on the US Court of Appeals for the Federal Circuit and the IP High Court of Japan. This chapter also makes proposals on how the EU system might learn from the US and Japanese experiences.

The final chapter in this section Craig Nard explores the discretion for EU patent judges that potentially maps more closely to the American model, in what he called Europe's bold experiment.

Part 3: IP and International Adjudication

The final part of the book reflects on international intellectual property adjudication, in 3 chapters. In the first chapter, Susy Frankel looks at the interpretation of international IP instruments in national, regional and international courts and tribunals.

The second chapter, authored by Peter Yu addresses investor-state dispute settlement and the Trans-Pacific Partnership. He argues that, whilst there is strong opposition to the use of investment law in IP, it is time to better engage in this area with a view to improving and better understanding Investor State Dispute Settlement (ISDS).

A substantive collection indeed
image: wabisabi2015

In the final chapter, Daniel Gervais asks whether the WTO Appellate Body "makes" IP law, addressing questions such as how a trade tribunal applies non-trade norms, whether is functions like a court when interpreting WTO texts, and in doing so "makes law", with particular notice taken of the tobacco plan packaging cases.

Readers may recall that this title won Best IPKat Book of the Year Award 2018, and now we know why - its in-depth, thorough and substantive comparative analysis of the IP courts from leading experts, offers unique insights into the challenges that IP Judges face in global IP adjudication such as the rapidly evolving markets, social implications and ethical dilemmas. This book would appeal to any IP practitioner, lawyer, academic, or student interested in IP enforcement in general and in particular in the area of Patent enforcement.

Extent: 560 pp
Hardback Price: £135.00
EE Website: £121.50
E-Book: Google Play £21.60