The International Chamber of Commerce (ICC) has published a report titled Adjudicating Intellectual Property Disputes, which provides an overview of the structures and trial procedures of 'specialised intellectual property jurisdictions' (SIPJs) in countries around the world.
The ICC's report was launched on 28 April 2016 at the International Forum on Intellectual Property - 21st Century, held in Moscow. It follows a survey of ICC members and input from attorneys and IP practitioners with hands-on litigation experience and expertise in intellectual property (IP), including from the US, the UK, Germany, India, China and Japan.
From the UK, Gowling WLG's David Barron and Ailsa Carter contributed to the ICC's analysis. Sir Robin Jacob, retired Lord Justice of Appeal, Professor of IP Law at University College London, is also noted as a contributor.
The ICC's stated aim is to assist countries in their consideration of whether, and how, to establish or improve SIPJs so as to enhance overall efficiency and expertise in IP-related trials. The ICC explains that it considers the role of IP in supporting innovation, cross-border trade and economic development to be important, and that both users and holders of IP rights need well-functioning and efficient mechanisms to protect intellectual assets.
The report provides an overview of the structures and trial procedures of differing SIPJs. By necessity, it is a bird's-eye view and generalisations are made. It notes that motivations for establishing SIPJs are broadly consistent, principally for courts to develop experience and specialism in IP disputes, with a view to improving the consistency and predictability of judgments, and so to enhance the effectiveness of enforcement. How this is affected tends to reflect the legal system of the country concerned.
For example, in common law countries, expert evidence and cross-examination play an important role in assisting the court with understanding the technology and issues in dispute, whereas in countries with a civil law system the court more frequently includes a technical judge or court appointed technical expert, or permits IP practitioners (e.g. patent attorneys) to act as representatives.
The report notes that SIPJs may not be warranted in all countries, for example in countries of a size which, or in which litigation volume, does not justify such specialty. In countries where there is a need for SIPJ, the appropriate mechanism will depend upon the local judicial system, legal tradition, ideology and socio-economic context. Nevertheless, the importance of any structure enabling the court to understand the technical issues in dispute is highlighted, and differing possibilities for achieving this discussed.
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