IBA survey looks at pros and cons of specialized IP courts

The International Bar Association's (IBA) Intellectual Property and Entertainment Committee has carried out a survey and written a report on the existence and use of specialized IP courts around the world. It was carried out in response to the difficulties that some IP owners face in enforcing their rights judicially.

The report found that a number of jurisdictions have explored the potential of specialized courts to enforce IP rights, and concluded that the time is right for their development. The report found the advantages of specialized IP courts to include the following:

• Expertise in IP issues should lead to more reasoned and practical decisions. Judges of specialized courts would be able to concentrate on pursuing core issues tailored to specific cases, as well as gaining a better understanding of general IP issues.
  
  
• There would be a more predictable outcome of proceedings and increased confidence in the system.
  
  
• An IP court would be able to keep up more easily with developments in both domestic and international IP law.
  
  
• The introduction of specialized IP courts would likely be accompanied by specialized advocates with expertise in particular areas of IP law.
  
  
• There would be a quicker and more effective decision-making process, with time and money saved on educating judges. Judges used to the same types of case are able to control lawyers more easily, write clearer decisions and increase the chances of settlement.
  
  
• There would be a reduced risk of judicial error, which can contribute to the effectiveness of the administration of justice. In addition, specialized courts can help to reduce the caseload of overburdened generalist courts.
  
  
• Specialized courts would be able to recognize and rely on decisions in other jurisdictions, which is not generally permitted. The hope would be that experts and exhibits needed in the general courts to explain facts and technical evidence would not be required.

The disadvantages include the following:

• The cost of establishing and maintaining such courts may be prohibitive, especially if it included the training of judges, court personnel and lawyers.
  
  
• There is concern that such specialized courts could lead to the loss of generalist overviews and lead IP law away from the general law.
  
  
• IP cases may sometimes involve issues that are more suitable for a generalist court. This could lead to conflict about where a case should be heard. Further, such specialized courts are usually based in one place therefore leading to increased travel costs for parties in some cases.

For IP courts to thrive and function properly there would need to be substantial reform of the entire legal and procedural system in a given country. Important questions need to be posed to ascertain the suitability of specialized IP courts in a particular jurisdiction.

The committee has drafted a set of proposals for action addressing the problems of IP rights enforcement, which include increasing the specialization of IP judges, providing comprehensive training, and educating the public about the importance of IP rights.

For discussion of the Spanish and Italian decision to set up specialized divisions for IP cases, see Spain sets up new commercial courts for IP matters and Italy sets up specialized IP courts.

Nick Rose, Field Fisher Waterhouse, London