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Intellectual Property and the Judiciary
Intellectual Property and the Judiciary explores the role of the judiciary in the elaboration and interpretation of intellectual property law, exploring how IP doctrine and policy are developed and the manner in which judges construct and apply norms in different court systems. The authors engage in a comparative exploration of various national, European and international judiciaries and appraise the competing and complementary roles of governing bodies. The book offers an examination of both common law and civil law traditions in the context of judicial treatment of intellectual property.
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Critical Acclaim
Contributors
Contents
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Intellectual Property and the Judiciary examines the role of judges in the development, interpretation and application of intellectual property (IP) law and norms. In this regard, the authors engage in a comparative analysis of various national, European and international court systems while also exploring the competing and complementary roles of legislators and executive actors.
Each chapter seeks to capture the comparative institutional advantages of government bodies within existing legal frameworks as well as offering a thorough examination of both the common law and civil law traditions in the context of judicial treatment of intellectual property. The result is a series of proposals relating to the architecture of judiciaries and the functional role of judges with the goal of optimally positioning jurists to address complex issues and advance intellectual property doctrine and policy.
Featuring high-level authors from both academia and practice, the book will be of great interest to academic researchers and practicing lawyers who have a focus on intellectual property. It will be of particular value to those who are engaged in the rapidly changing enforcement environment of intellectual property rights.
Each chapter seeks to capture the comparative institutional advantages of government bodies within existing legal frameworks as well as offering a thorough examination of both the common law and civil law traditions in the context of judicial treatment of intellectual property. The result is a series of proposals relating to the architecture of judiciaries and the functional role of judges with the goal of optimally positioning jurists to address complex issues and advance intellectual property doctrine and policy.
Featuring high-level authors from both academia and practice, the book will be of great interest to academic researchers and practicing lawyers who have a focus on intellectual property. It will be of particular value to those who are engaged in the rapidly changing enforcement environment of intellectual property rights.
Critical Acclaim
‘This collection is an important addition to a developing area and would be an excellent addition to the libraries of IP scholars, lawyers and judges worldwide.’
– Karen Walsh, Modern Law Review
‘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.’
– Hayleigh Bosher, IPKat
‘This is an excellent book that contains many interesting contributions.’
- Richard Arnold, Journal of Intellectual Property Law & Practice
‘This book fills a gap in IP law. There are many publications on substantive and procedural law in IP litigation. But it was impossible to find a book that addresses the role of the judiciary in IP like this one does. It provides unique insights into the matter from a variety of angles. It brings together editors and authors from the bench, the bar and academia coming from all over Europe, the US and Japan. This book is a must-have for everyone who has an interest in international IP litigation.’
– Klaus Grabinski, Justice, Federal Court of Justice (Bundesgerichtshof), Germany
‘This volume makes an important contribution to our understanding of the contours of intellectual property protection through a critical examination of the global trend to adjudicate IP disputes in specialized courts. The editors have assembled an extraordinary group of scholars, practitioners and judges to compare their experiences with various adjudicatory structures.’
– Rochelle Dreyfuss, New York University, School of Law, US
‘This well-chosen collection of scholarly, but readable, papers resonates with the work of the WIPO Advisory Committee on Enforcement, where Member States are exchanging experiences on resolving IP disputes in a balanced, holistic and effective manner. It will surely advance the global debate on judicial specialization and institutional arrangements.’
– Louise van Greunen, World Intellectual Property Organization (WIPO), Switzerland
‘Whether criticized as “activist” judges or applauded for their rulings, adjudicating IP is never an easy task. Judges must face complex IP laws, rapidly evolving markets, as well as fundamental social implications and ethical dilemmas. In this book, leading scholars from around the world provide a comprehensive picture of these challenges, offering valuable insights regarding global IP adjudication.’
– Raquel Xalabarder, The Open University of Catalonia, Spain
‘Intellectual Property and the Judiciary is a milestone. The in-depth analysis of judiciary practice ranges from typical intellectual property settings to human rights and dispute settlement contexts. It compares national, regional and international experiences. The book is an absolute must for all practitioners and academics seeking to understand the dynamics of judicial decision-making in the field.’
– Martin Senftleben, Vrije Universiteit Amsterdam, the Netherlands
– Karen Walsh, Modern Law Review
‘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.’
– Hayleigh Bosher, IPKat
‘This is an excellent book that contains many interesting contributions.’
- Richard Arnold, Journal of Intellectual Property Law & Practice
‘This book fills a gap in IP law. There are many publications on substantive and procedural law in IP litigation. But it was impossible to find a book that addresses the role of the judiciary in IP like this one does. It provides unique insights into the matter from a variety of angles. It brings together editors and authors from the bench, the bar and academia coming from all over Europe, the US and Japan. This book is a must-have for everyone who has an interest in international IP litigation.’
– Klaus Grabinski, Justice, Federal Court of Justice (Bundesgerichtshof), Germany
‘This volume makes an important contribution to our understanding of the contours of intellectual property protection through a critical examination of the global trend to adjudicate IP disputes in specialized courts. The editors have assembled an extraordinary group of scholars, practitioners and judges to compare their experiences with various adjudicatory structures.’
– Rochelle Dreyfuss, New York University, School of Law, US
‘This well-chosen collection of scholarly, but readable, papers resonates with the work of the WIPO Advisory Committee on Enforcement, where Member States are exchanging experiences on resolving IP disputes in a balanced, holistic and effective manner. It will surely advance the global debate on judicial specialization and institutional arrangements.’
– Louise van Greunen, World Intellectual Property Organization (WIPO), Switzerland
‘Whether criticized as “activist” judges or applauded for their rulings, adjudicating IP is never an easy task. Judges must face complex IP laws, rapidly evolving markets, as well as fundamental social implications and ethical dilemmas. In this book, leading scholars from around the world provide a comprehensive picture of these challenges, offering valuable insights regarding global IP adjudication.’
– Raquel Xalabarder, The Open University of Catalonia, Spain
‘Intellectual Property and the Judiciary is a milestone. The in-depth analysis of judiciary practice ranges from typical intellectual property settings to human rights and dispute settlement contexts. It compares national, regional and international experiences. The book is an absolute must for all practitioners and academics seeking to understand the dynamics of judicial decision-making in the field.’
– Martin Senftleben, Vrije Universiteit Amsterdam, the Netherlands
Contributors
Contributors: V. Cassiers, T. Cottier, M. Ekvad, S. Frankel, C. Geiger, D. Gervais, S. Granata, J. Griffiths, E. Izyumenko, T. Kandeva, S. Luginbuehl, B.M.G. Lynn, S. Martin, C. Mulder, M. Müller, C.A. Nard, K.M. O’Malley, C.S. Petersen, A. Plomer, J. Schovsbo, X. Seuba, A. Strowel, T. Takenaka, A. von Mühlendahl, G. Würtenberger, P.K. Yu
Contents
Contents:
Introduction
Christophe Geiger, Craig Allen Nard and Xavier Seuba
Part I Intellectual Property and European Courts
Section 1. Intellectual Property and the European Court of Human Rights
1. Intellectual Property before the European Court of Human Rights
Christophe Geiger and Elena Izyumenko
2. The European Court of Human Rights: An Unlikely Forum for the Enforcement of IP Rights
Aurora Plomer
3. Copyright and the Human Right to Property: a European and International Case Law Approach
Thomas Cottier
Section 2. Intellectual Property and the Court of Justice of the European Union
4. Taking Power Tools to the Acquis - The Court of Justice, the Charter of Fundamental Rights and European Union Copyright Law
Jonathan Griffiths
5. Intellectual Property Law made by the Court of Justice of the European Union
Vincent Cassiers and Alain Strowel
6. The Role of the European Court of Justice in the European Patent Court System
Stefan Luginbuehl and Teodora Kandeva
Section 3. Intellectual Property and the Unified Patent Court
7. Decision-making in the Unified Patent Court: Ensuring a Balanced Approach
Clement Salung Petersen and Jens Schovsbo
8. The Patent Mediation and Arbitration Centre: A Centre of Opportunities
Sam Granata
9. Scientific Complexity and Patent Adjudication: The Technical Judges of the Unified Patent Court
Xavier Seuba
Section 4. Intellectual Property and European Quasi-Judicial Bodies (European Patent Office, European Union Intellectual Property Office and Community Plant Variety Office)
10. The Procedural Rules in Appeal Proceedings before the European Patent Office
Cees Mulder and Marcus Müller
11. The Functioning of the Community Plant Variety Office Board of Appeal
Martin Ekvad
12. Position of the Board of Appeal in the Legal Protection System for Community Plant Variety Rights
Gert Würtenberger
13. The Boards of Appeal of the European Union Intellectual Property Office: an Alien within the Landscape of European Administrative Law!
Stefan Martin
14. The Boards of Appeal of the European Union Intellectual Property Office
Alexander von Mühlendahl
Part II Intellectual Property and courts in the United States and Japan
15. The Proposed Structure and Function of the Unified Patent Court: Lessons from the American Judicial Experience
The Honorable Kathleen M O’Malley and The Honorable Barbara M G Lynn
16. The Best Practice for Patent Judiciary: Lessons from another Experiment on Specialized Adjudication for Patent Cases in Japan
Toshiko Takenaka
17. Europe’s Bold Experiment: Lessons Learned from America’s Patent Law Experience
Craig Allen Nard
Part III Intellectual Property and International Adjudication
18. The Interpretation of International Intellectual Property Instruments in National, Regional and International Courts and Tribunals
Susy Frankel
19. Investor-State Dispute Settlement and the Trans-Pacific Partnership
Peter K Yu
20. Does the WTO Appellate Body ‘Make’ IP Law?
Daniel Gervais
Index
Introduction
Christophe Geiger, Craig Allen Nard and Xavier Seuba
Part I Intellectual Property and European Courts
Section 1. Intellectual Property and the European Court of Human Rights
1. Intellectual Property before the European Court of Human Rights
Christophe Geiger and Elena Izyumenko
2. The European Court of Human Rights: An Unlikely Forum for the Enforcement of IP Rights
Aurora Plomer
3. Copyright and the Human Right to Property: a European and International Case Law Approach
Thomas Cottier
Section 2. Intellectual Property and the Court of Justice of the European Union
4. Taking Power Tools to the Acquis - The Court of Justice, the Charter of Fundamental Rights and European Union Copyright Law
Jonathan Griffiths
5. Intellectual Property Law made by the Court of Justice of the European Union
Vincent Cassiers and Alain Strowel
6. The Role of the European Court of Justice in the European Patent Court System
Stefan Luginbuehl and Teodora Kandeva
Section 3. Intellectual Property and the Unified Patent Court
7. Decision-making in the Unified Patent Court: Ensuring a Balanced Approach
Clement Salung Petersen and Jens Schovsbo
8. The Patent Mediation and Arbitration Centre: A Centre of Opportunities
Sam Granata
9. Scientific Complexity and Patent Adjudication: The Technical Judges of the Unified Patent Court
Xavier Seuba
Section 4. Intellectual Property and European Quasi-Judicial Bodies (European Patent Office, European Union Intellectual Property Office and Community Plant Variety Office)
10. The Procedural Rules in Appeal Proceedings before the European Patent Office
Cees Mulder and Marcus Müller
11. The Functioning of the Community Plant Variety Office Board of Appeal
Martin Ekvad
12. Position of the Board of Appeal in the Legal Protection System for Community Plant Variety Rights
Gert Würtenberger
13. The Boards of Appeal of the European Union Intellectual Property Office: an Alien within the Landscape of European Administrative Law!
Stefan Martin
14. The Boards of Appeal of the European Union Intellectual Property Office
Alexander von Mühlendahl
Part II Intellectual Property and courts in the United States and Japan
15. The Proposed Structure and Function of the Unified Patent Court: Lessons from the American Judicial Experience
The Honorable Kathleen M O’Malley and The Honorable Barbara M G Lynn
16. The Best Practice for Patent Judiciary: Lessons from another Experiment on Specialized Adjudication for Patent Cases in Japan
Toshiko Takenaka
17. Europe’s Bold Experiment: Lessons Learned from America’s Patent Law Experience
Craig Allen Nard
Part III Intellectual Property and International Adjudication
18. The Interpretation of International Intellectual Property Instruments in National, Regional and International Courts and Tribunals
Susy Frankel
19. Investor-State Dispute Settlement and the Trans-Pacific Partnership
Peter K Yu
20. Does the WTO Appellate Body ‘Make’ IP Law?
Daniel Gervais
Index
