Patent disputes revolve around technical features

A patent dispute, whether it concerns e.g. a process for preparing a chemical product, the product itself or a mechanical device or apparatus, usually revolves around certain technical features. These features prove to be decisive for the outcome of legal action. It is therefore important for ensuring quality of decisions by judges that these judges not only have had a thorough legal training, but also a technical training. In Germany and England the judges handling IP litigation have also had a technical training at academic level or obtained the necessary technical knowledge and insight through post academic courses. Most judges in the Netherlands learned the technical aspects on the job, i.e. during litigation proceedings from patent attorneys and experts. There are however patent attorneys with a law degree who act as judge in the District Court of The Hague. It would nevertheless be advisable to recruit judges from the group of European Patent Attorneys who have followed training at one of the CEIPI – epi Diploma Courses on Patent Litigation in Europe at the University of Strasbourg. Judges and attorneys at law with no technical background/training where it concerns the ability of reading and interpreting of technical drawings and complex chemical structural formula still need the coaching and advice from IP counsels. European Patent Attorneys could provide training to judges (and attorneys at law) for this purpose.

In general one can say that patent attorneys play an important role in helping judges to close this knowledge and technical insight gap. Judges really appreciate that patent attorneys take the time to explain the technical features in simple language. In fact it takes teamwork between judges, patent attorneys and attorneys at law to describe the technical features of a case in clear wording comprehensible by non-experts without much effort.  After all the quality of the judgment will be enhanced if judges really understand the sometimes subtle differences in technical features which determine the outcome of patent litigation.

 

In the United Kingdom, Germany, France, the Netherlands, Denmark, Sweden, Finland, Switzerland, Austria and Spain there are only about 150 judges in total handling patent cases. Only a limited number of these judges has had an academic technical training. The quality of judgment in patent cases can be substantially enhanced if judges would receive permanent training in the technical subject matter of patent specifications. They have to fully understand this subject matter in order to be able to deliver quality judgments. It is not surprising that the quality of judgements of judges in the United Kingdom and Germany is generally considered high. The majority of these judges has a technical degree in chemical engineering, chemistry or mechanical engineering.

The Hague, 2 June 2011
Jowi Burger
(c) 2011 Jowi IPS Intellectual Property Services