The International Intellectual Property Institute, in conjunction with the USPTO, has published a study (as well as an excellent interactive map) examining the level to which countries offer specialised IP courts. It’s a detailed piece of work covering almost every major jurisdiction and big economy, although there are some holes; and, not surprisingly given who has put it together, its central message is that specialisation is a good thing:

Based upon the case studies, this report finds that specialized IPR courts have many advantages. Specialized courts benefit the IPR owners and the government alike as they are more efficient and expedient. While all countries must consider their own needs and priorities, such as case loads and financial limitations, it is advisable for government officials to consider developing and maintaining some form of specialized IPR court.

On a point by point basis, it’s hard to disagree with what the authors state. The better a court understands IP the more efficient and predictable will be its findings, so aiding corporate decision-making. There are also significant benefits for both plaintiff and defendant as proceedings will be quicker, so making cases less expensive to fight. As the authors also say, there is little evidence to support claims made by critics of specialised courts that their creation will lead to potential biases becoming in-built, so that they essentially become more “pro-IP” than otherwise might be the case. You only have to look at the decisions reached by, say, the specialist judges in the UK to see that is not so: there is nothing they enjoy more than making life difficult for patent owners!

And yet, I am still uneasy about moves to encourage ever more specialisation. The danger for me is one that the report does not cover in much detail: the more you remove IP – and patents, in particular – from mainstream legal practice, the more of a tight, impenetrable world it becomes.

We are talking about a hugely important business asset here. The harder it is to understand the legal rights that underpin that asset – essentially what you can and cannot do, and can and cannot protect – the harder it becomes to manage and make decisions about. That will mean that many people will not try – something we all know happens now far too much. Once again, I go back to the afternoon I spent at the US Supreme Court watching the nine justices struggle with the whole notion of obviousness: if they did not get it, what chance has the founder of a high-tech start-up or the CEO of a multinational got?

What specialisation means is that lawyers, attorneys and judges have to think even less about how their arguments and decisions appear to the average business person or member of the public; they can develop wonderfully arcane doctrines, tests, precedents and the rest of it, happy in the knowledge that only they need to know what is going on: all of which is fantastic for them, but pretty unsatisfactory for the business world and society as a whole.

Of course, legal experts are always going to know the law better than everyone else. But when you remove from them any obligation to keep things simple and to think outside of the bubble what you are actually doing is helping to ensure that assets which can represent well over 50% of business value, and which have the potential to build new and exciting markets, create jobs and develop economies, remain side-lined and under-exploited. In my view that is, unquestionably, a bad thing.

Sectors

IP politics, Brands, IP litigation, Copyright, Patents, IP business

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