Dedicated Patent Courts
In today’s Globe and Mail there is an article entitled “An idea worth patenting: dedicated patent courts” which discusses the lack of specialized patent courts and the current moves in the U.S. and Europe to create such dedicated courts.
The problem in cases of patent litigation, according to the article, is that “[j]uries are often so mystified by the legal and technical complexities that style trumps substance. Overwhelmed judges, more comfortable presiding over drugs-and-gun cases, can easily get out of their depth.”
Unfortunately the Globe article focuses on the developments in the U.S. and Europe. For example, Canadian patent litigation does not involve juries; so at least the worry about mystified juries is not a concern here.
But, in Canada too, there have been calls in the past to reform the way we litigate patents. For example, in Unilever PLC et al. v. Procter & Gamble Inc. et al., (1993) 47 C.P.R. (3d) 479, Muldoon J. makes the following comments regarding the difficulties a generalist judiciary faces when having to rule on highly technical patent matters:
When one considers the apparent silliness of trial by a judge who is utterly unschooled in the scientific substance of a patent, hearing conflicting testimony of so-called experts who speak the antithesis of scientific verity, and lawyers who have been engaged in the particular case for years before the trial, one knows that this field cries out for reform. It wastes the scarce resources of the Court, which is not configured for getting at the truth of arcane scientific contradictions… [para. 9]
Unfortunately not much has changed since those comments back in 1993. Appointments of judges with intellectual property background, such as that of veteran intellectual property litigator Roger T. Hughes, Q.C. to the Federal Court last year (see my previous post), will probably help.
Also, both our Federal Court and the various Provincial Superior Courts still continue to have concurrent jurisdiction to hear patent infringement suits in Canada. I suspect that many of the judiciary on the Provincial Superior Courts continue have the same sort of sentiments as those of Muldoon J. when they are faced with complex patent litigation issues.
Ultimately what guides a litigant’s decision to initiate legal proceedings before one Court or the other is mainly a matter of strategy. Most often, Canadian patent litigants will initiate proceedings in the Federal Court of Canada since it has a broader jurisdiction, can render orders to invalidate patents (Provincial Courts cannot) and probably has an edge over its Provincial counterparts in terms of expertise.