tag:blogger.com,1999:blog-5574479.post7538127306687339559..comments2024-03-29T06:53:23.405+00:00Comments on The IPKat: Can Patent Judges "Colloquy" Themselves To Greater Uniformity? Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger18125tag:blogger.com,1999:blog-5574479.post-1918757582104800962013-10-08T13:08:33.831+01:002013-10-08T13:08:33.831+01:00Anonymous @ 11:51,
Should I take solace then, tha...Anonymous @ 11:51,<br /><br />Should I take solace then, that since you use an emotion (rather than any basis in law) in siding with MaxDrei, that I am correct in my view?<br /><br />Thanks for the confirmation of my correctness.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-14799135591970991582013-10-08T11:51:49.131+01:002013-10-08T11:51:49.131+01:00Discussion between MaxDrei and Anon relates to que...Discussion between MaxDrei and Anon relates to quesiton of jury involvement in patent disputes.<br /><br />In my opinion, juries are not qualified to assess facts related to patents. As such, I support MaxDrei positionAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-4179656144671054642013-09-02T14:34:07.834+01:002013-09-02T14:34:07.834+01:00BluePrint @9:45,
I am genuinely interested in wha...BluePrint @9:45,<br /><br />I am genuinely interested in what you found to be interesting and helpful (other than how off-topic and illogical) in the position advanced by MaxDrei.<br /><br />How was it helpful to take your eye off the ball?<br /><br />Was it helpful to view critical thinking in the posts that show how weak MaxDrei's position is?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-84052975067443487062013-09-02T09:45:33.500+01:002013-09-02T09:45:33.500+01:00In support of MaxDrei, I found your comments inter...In support of MaxDrei, I found your comments interesting and helpful in thinking around the relevant issues here.BluePrintnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-38080765826866987072013-09-02T00:35:18.640+01:002013-09-02T00:35:18.640+01:00MaxDrei @21:45,
Your concern about an 'interl...MaxDrei @21:45,<br /><br />Your concern about an 'interlocutor' is misplaced.<br /><br />Be more concerned with having and expressing a cogent argument, or at least recognizing that 'fact-based' view runs a poor second to what the thread is about (in other words, your food was inedible).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-7523747546420387332013-09-01T21:45:18.719+01:002013-09-01T21:45:18.719+01:00Readers, in the thread above I have been trying to...Readers, in the thread above I have been trying to provide food for thought, and not to bore you. At this point though, for this very reason, I see it as quite important that I stop forthwith, rather than feed my interlocutor any more lines.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-64312479891701746112013-09-01T20:23:34.490+01:002013-09-01T20:23:34.490+01:00MaxDrei @21:53, @10:19, and @14:09,
Reading the ...MaxDrei @21:53, @10:19, and @14:09,<br /><br />Reading the exchange here, I am struck with far more suspicion and far less conviction of your advocacy for fact-based trans-sovereign review.<br /><br />I am left wondering why are you so intent to pursue a fact-based type of review (at an appellate level) as some of type of critical driver, when it is clear from the dialogue that such a position, even if true, is far overshadowed by the actuality and the concern for that actuality for the legal-based type of trans-sovereign review.<br /><br />For example, in your last post, you recognized the main dialogue, yet immediately seek to talk about the subject you deem more important. And you do so in a way (“<i>But… bound to respect their own national precedents</i>” as if you seek to dismiss the very point under analysis. You then indicate a weak point (in favor of a view on fact based versus law based) as if that point was in your favor (“<i> extent to which these are "Binding" varies though, with each jurisdiction</i>”). <br /><br />These 'errors' make the apparent desire to emphasize a fact-based critically all the more puzzling.<br /><br />You then provide an apparently errant view of fact review – which no reasonable court would entertain – or should entertain, as an appellate review of facts clearly has more deference to their own lower court – <b>by design</b>. It seems that you do not know how courts do (or should) operate.<br /><br />You then ask a question – the point of which is immediately being pushed in the opposite direction. The German court of your example <b>should not be concerned at all</b> with what the English court did – the English court applied English law not German law.<br /><br />It is as if you already presuppose that there exists a universal ‘law’ and that all the sovereigns need to sacrifice in order to align to this unstated universal ‘correct’ law.<br /><br />That is wrong.<br /><br /><br />Lastly, you end with amounts to a weak truism: ALL judges in ALL courts (not just Rader in the CAFC) are intent in ‘getting it right’ and “avoiding handing down decisions that fail to command respect.” This does not support the viewpoint that you seem to want to advance, and leave me with the distinct impression that your position is weaker than when you started discussing it.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-38668343042932230982013-09-01T14:09:46.147+01:002013-09-01T14:09:46.147+01:00Indeed, the post is referring to points of law rat...Indeed, the post is referring to points of law rather than fact. But the post also mentions that each judge participating in the colloquy is bound to respect their own national precedents. The extent to which these are "Binding" varies though, with each jurisdiction. And judges the world over are adept at distinguishing the case at bar with the precedential cases when it suits them, to get to the result that they think is just and correct. <br /><br />On the issue of "deference" the issue is not between the first and appeal instances within one jurisdiction exclusively. Rather, it is between the facts found in one jurisdiction and those found later, in another.<br /><br />Consider for example the predicament of the BGH in Karlsruhe, while hearing a patent validity Appeal from the BPatG (Federal Patents Court) in Munich, when the English high court has in the meantime found out through discovery and cross-examination particular facts that render absurd the validity argument relied upon by the BPatG. What shall Germany's court of appeal do, to prevent a flat contradiction in the final outcome in Germany and the UK?<br /><br />I like to think that Randall Rader is also intent on avoiding handing down decisions that fail to command respect. MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70573231475454402602013-08-31T23:53:12.895+01:002013-08-31T23:53:12.895+01:00MaxDrei @10:19,
Sorry, but I am not buying the id...MaxDrei @10:19,<br /><br />Sorry, but I am not buying the idea that it is the facts that are being checked.<br /><br />On appeal, it is rare that it is the facts that present the thorny issues, given the level of deference to findings of facts. Further, the gist of the thread here is on law - not case facts.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-940965186910212042013-08-31T12:41:31.670+01:002013-08-31T12:41:31.670+01:00I would add to Andy J's and Anonymous @2/20 po...I would add to Andy J's and Anonymous @2/20 posts that policy swinging is not only inherently unstable <i>between</i> different and emerging countries, but within any country. Lack of a stabilizing judicial control does not produce a more fit law and cannot produce a more fit law, because 'more fit' merely becomes defined by a fickle flavor of the day, policy of the moment.<br /><br />Look at the recent revelations concerning "Trolls." A few powerful corporate interests had swung their lobbying power and the White House earlier this summer put out a "Trolls are the worst thing ever" whitepaper.<br /><br />Turns out not to be so.<br /><br />At all.<br /><br />A strong stare decisis effect serves to help combat this type of agency capture. When any individual judge can decide a case without regard to controlling law, the fickleness of the corporate tinged worst-things-ever of the day is too strong, and results not in any ever-better law, but in a constant see-saw back and forth battle for the perception of popular belief.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-81928649330513464712013-08-31T10:53:12.501+01:002013-08-31T10:53:12.501+01:00I'm also quite disturbed by this. Where's...I'm also quite disturbed by this. Where's the statutory basis for cooperation between judges from different jurisdictions? Where's the transparency in what they discuss and agree between themselves. When parties appeal a decision they need to be able to see all the reason for the decision, and that would include discussions between judges. Who has decided on what things judges can discuss and agree on?<br /><br />There's also the basic point that judges cannot be allowed to become too powerful in any given system. Therefore when they decide to give themselves new powers it needs to be very carefully scrutinised. Also appointing judges to the US Supreme Court is a very political process, and the party in power can seek to influence decision by way of this process. Why should that judicial system be allowed to input into our patent decisions here in the UK?<br /><br />Harmonisation is a good thing, but must be done by the correct means, which has to start with publically available legislation/rules that will be the basis of cooperation.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-59558438212513393272013-08-31T10:19:57.501+01:002013-08-31T10:19:57.501+01:00As the 38 Member States adhering to the European P...As the 38 Member States adhering to the European Patent Convention have found out, every sovereign jurisdiction has a Doctrine of Equivalents (or something that has the same efeect but goes by another name). Every one has a notional PHOSITA, a lens through which patent cases are viewed. Different jurisdictions though have different ways to find out the facts. <br /><br />Every judge wants to know the facts. Then he or she can find the law, based on those found facts. Once the Facts are established, it is often pretty straightforward to decide the legal issues. Once the Facts are established, the judges in the different jurisdictions will usually have no difficulty reconciling the factual consensus with their particular Binding Precedents.<br /><br />In recent times there have been plenty of embarrassing judgements made by courts who haven't properly grasped the Facts. It really is not funny when one court has to explain in its judgement why a brother jurisdiction got it wrong and so (with the best will in the world) cannot be followed.<br /><br />So, I suspect that the main motivation of the judges to talk to each other is to avoid any future such embarrassments (rather than out of any burning urge to deliver more legal certainty to litigants). MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-33889842803299231302013-08-31T02:20:46.969+01:002013-08-31T02:20:46.969+01:00MaxDrei@21:53,
Can you provide any reasoning for ...MaxDrei@21:53,<br /><br />Can you provide any reasoning for your view?<br /><br />It seems like a mere wish. Does Germany or England have an equivalent to US's KSR? What about Doctrine of Equivalents?<br /><br />I think it much more than "reasonable minds can differ." I think it rather important <i>why</i> those minds are differing. If those differences are are generated by case law, for example, stare decisis cannot be ignored in the US. That serves as a kind of Darwenian mechanism to prevent any type of see saw effect that may happen when judges have too much latitude.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-15939978096210605692013-08-30T22:07:32.623+01:002013-08-30T22:07:32.623+01:00I agree with the disquiet expressed by Neil, Jerem...I agree with the disquiet expressed by Neil, Jeremy and Anonymous @19/7. If the problem lies in differences in law between the jurisdictions, then judges should not be taking it upon themselves - even for ostensibly good reasons - to bend the law to fit an outcome that national legislatures did not intend.<br />It is bad enough that the US Govt and a number of major US industry bodies like MPAA etc spend much time and resources pressuring other states and the EU to amend internal laws, often through international agreements (such as ACTA) in a way which manifestly favours American interests. We really don't want American judges doing the same thing, especially when in a few years time the US economy will no longer be the biggest in the world, at which point other major players will undoubtedly want the same ability to swing policy their way.Andy Jnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-17967520458494092702013-08-30T21:53:27.962+01:002013-08-30T21:53:27.962+01:00US, Germany and England, says Rader CJ. Keep in mi...US, Germany and England, says Rader CJ. Keep in mind that his bench, and the counterpart OLG in Germany, has three judges. Reasonable minds can differ, on issues such as obviousness, claim construction, on what any given printed document discloses to the person of ordinary skill in the art. Every jurisdiction sets the scope of protection by what the claim means and, in every jurisdiction the validity of that claim will likely turn on the obviousness issue. Do the members of the bench discuss the case amongst themselves? They do at the EPO.<br /><br />So I think there is unlimited scope for judges from different jurisdictions to talk over these issues and then come to a consensus about any one international patent family, without doing violence to the statute law and caselaw that binds each of them in their particular jurisdiction.MaxDreinoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-9267327553931757572013-08-30T19:07:28.100+01:002013-08-30T19:07:28.100+01:00Jeremy states "resulting internal inconsisten...Jeremy states "<i>resulting internal inconsistency between decisions relating to the same issue in each jurisdiction</i>."<br /><br />I agree.<br /><br />National sovereignty - and respect for the same - dictates that the laws are interpeted according to each nation's distinct flavor.<br /><br />At least in the U.S., and especially pertaining to patent law, it is Congress that is charged with writing the law (a charge written into the very fabric of our nation).<br /><br />With a bit of irony, it was Judge Rader who vehemently stressed this in the en banc <i>Ariad</i> case awhile back.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-19233153291110077172013-08-30T17:30:48.685+01:002013-08-30T17:30:48.685+01:00Good questions, Jonas, which I'm sure Neil wil...Good questions, Jonas, which I'm sure Neil will want to address.<br /><br />An obvious problem which the judicial consistency approach causes is that it sacrifices one type of consistency in favour of another. Thus, while all decisions between Apple and Samsung (say) might be tweaked so that the same result is achieved in Germany, France, the US, Japan, Korea etc, this is likely to mean that there is a resulting internal inconsistency between decisions relating to the same issue in each jurisdiction.<br /><br />I also can't help wondering how much judicial manipulation in favour of outcome consistency might be expected from US judges if it transpired that their judges were having to upset their case law doctrines in order to reach the same results as were achieved in, eg France, Italy and Spain?Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-61856139238895826782013-08-30T17:20:20.018+01:002013-08-30T17:20:20.018+01:00What are the different demands at the national set...What are the different demands at the national setting?<br />How will such discussions among legal elites fit into the feedback loops of the "judicialization" theory of Stone Sweet and others?<br />Are judges stealing reasoning form other jurisdictions?Unknownhttps://www.blogger.com/profile/04862021134416895469noreply@blogger.com