Journal of Intellectual Property Law & Practice Advance Access originally published online on April 30, 2007
Journal of Intellectual Property Law & Practice 2007 2(6):349; doi:10.1093/jiplp/jpm066
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© The Author (2007). Published by Oxford University Press. All rights reserved
Editorial |
Time to play Catch-Up
‘Catch Us If You Can!!!’ is the improbable name of an Italian weblog managed by Lorenzo Litta and masterminded by veteran IP expert Stefano Sandri. Although it is rarely possible to measure what a blog achieves, it is usually quite feasible to identify what it tries to do. In this instance the bloggers’ objective is to raise their readers’ sensitivity towards intellectual property rights issues and to create a greater awareness of the parameters of protection and permitted use in a culture which places a higher value on creativity than on commercial necessity.
What caught my eye was a post on 26 March that described a two-day meeting held in Venice for the judges in Italy's twelve Community Trade Mark and Design Courts. The agenda contained some legal updating and a mock trial, organized by the Office for Harmonisation in the Internal Market, in which the judges actively participated.
The obvious benefit of this exercise was that the members of the Italian judiciary who attended would have come away from the event better informed and ideally better able to perform their judicial functions. But there is a greater benefit to be derived. Where judges are trained together, work together—even in play, as with mock trials—and take the opportunity to share and compare their professional experiences, there is a greater likelihood that their judicial decisions will be consistent with those of their colleagues.
The point of significance is this. Harmonization of domestic law within the European Union, and the adoption of pan-European rights that extend to 27 national jurisdictions, will not lead to a level playing field in the grant and enforcement of IP rights unless there is a degree of consistency as between EU member states in terms of the way such law is interpreted and applied. This consistency is not achieved solely by the issue of edicts from Brussels or rulings from the EU's supreme organs of judicature in Luxembourg, but by those countless small experiences that enable the individuals who operate the system to chart their modus operandi against that of their colleagues.
Getting judges to apply the same IP law in the same way is obviously a European problem, but it is not exclusively so. The United States, grappling with the same issues, has found that the establishment of a Court of Appeals for the Federal Circuit has enhanced the consistency of the jurisprudential evolution of patent law but without any guarantee that trial courts in different regions will interpret and apply it the same way. Some degree of divergence from the norm must be tolerated in every system in which the judges are not automata and must execute their duties on the basis of personal evaluation of the facts and discretion in their application. But once this divergence forms a predictable pattern, with some litigants hell-bent on bringing patent suits in East Texas while others rush to the West Coast or seek the security of Virginia, one is left with the feeling that US patent law has ceased to be unitary, if ever it was.
The reader may by now have come to realize that lack of consistency is endemic in IP systems worldwide. For example, the policing and judicial enforcement of intellectual property rights in China appears to display the same lack of consistency as that of the longer-established national and regional systems. But only a cynic would say that the Chinese have, remarkably, achieved their inconsistency in far less time than their main Western competitors-turned-customers. A more positive spin is that inconsistency is more or less constant and that it is a natural by-product of any system that requires humans to exercise their own judgment—but what has increased sharply is our awareness of it, brought about by our own increased devotion to the harmonization or approximation of substantive, procedural and administrative IP law and our heightened awareness of anything that sticks out against it.
The fact that inconsistency is endemic and ineradicable in our legal systems does not make it a virtue—but neither is it necessarily a vice. In theory, the same prior art should be able to invalidate a subsequent patent application on the same objective grounds, regardless of the training and experience of the judge and the rules of operation of the court. However, the same manifestly does not apply in areas where cultural considerations dominate the legal outcome, such as trade mark registration or the establishment of likely confusion, issues that may turn on purely linguistic considerations.
Even if we cannot remove inconsistency and must tolerate it, we still do not have to endorse it as a desirable end: that is why it is such a good thing to train judges to act in a stable, predictable, and repeatable manner when confronted with similar laws and similar data. If Stefano Sandri and his colleagues in Italy and elsewhere can serve as catalysts to bring the judiciary together and help them share their experiences, the results can only be positive for all of us for whom the law should be constant both in its interpretation and in its application.
Footnotes
* Editor, Journal of Intellectual Property Law & Practice 
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