Can Patent Judges "Colloquy" Themselves To Greater Uniformity?

This Kat has gone silent for the last week or so while taking part in the Fourth Global Forum on Intellectual
Property in Singapore, here. One of the overarching themes of the conference was the tension between the international nature of markets and the national role of the IP right in furthering innovation and competitive advantage. Perhaps the most challenging expression of this tension was set out by the always engaging and challenging Chief Judge Randall Rader, United States Court of Appeals for the Federal Circuit. Judge Rader has been an outspoken advocate of the position that the IP system has to find more effective ways to mitigate the potentially deleterious effects of this tension.

In particular, Judge Rader focused on the problem facing multinationals with world-wide markets for their patented goods, but which are subject to the uncertainties that flow from the possibility of conflicting national judicial decisions concerning (more or less) the same patent, the same invention, the same prior art and the same parties. Apple v Samsung not to the contrary, for both sides of a dispute under such circumstances, perhaps the only result worse than losing in a given jurisdiction is the spectre of prevailing in one country, only to lose in another. Certainty provides a baseline, even when such certainty means that you have lost the patent dispute, because one can then plan and manage for the future with full knowledge of the rules of the game.

As is widely appreciated, however, there are no structures for providing consistent results of identical dispute across various national jurisdictions. And so the question—should judges across jurisdictions seek ways by which more consistent results in virtually identical patent disputes can be reached? At one level, it is well-recognized that IP judges from various countries get together inter alia to discuss matters of mutual interest. In such meetings, one can assume that a given judge may try to champion his or her view about a given matter, in the hope that perhaps this judge will be persuasive vis-à-vis his colleagues, as they then return to their national jurisdictions and render judgment on the matter at hand. In certain situations, these kinds of meetings and discussions might then have the effect of reducing disparities in result across the national jurisdictions. Indeed, Judge Rader is known as an indefatigable proponent of certain views, expressed in diverse regional and international forums.

However, a comment by Judge Rader in his address at the Singapore conference suggested that something more systematic maybe be taking place. At one point, Judge Rader referred to a certain patent dispute (sadly, this Kat did not hear the name of the case) that had been litigated in a number of key jurisdictions. He then observed that an identical result had been reached in the dispute in the US, UK and Germany (in which it appears that the judge reversed a long-time precedent regarding the issue at hand), respectively. Judge Rader stated that this identity of result "was not by accident". He explained that the three national judges had apparently taken part in discussions and that they had explored how to reach a common result, subject to the national-law limitations of the three jurisdictions. In this way, judges could achieve a measure of uniformity on patent law questions even in the absence of any formal mechanisms or structures for doing so.

On the one hand, this Kat can appreciate the potential benefits achieved by such semi-formal consultations. The parties to the dispute were the recipients of a uniform result in three of the principal forums in the world for adjudicating patent disputes. On the other hand, this Kat has a lingering sense of unease about the fact that there seems to be a "club" of distinguished patent jurists who confer with each other outside of the formal national judicial structures. After all, however attractive may be the position that more uniform results in patent disputes across countries are good both for the patent system and the global marketplace, this comes at the potential price of doing harm to the notion of IP rights as being national in nature.

It is one thing for the head of the central bank of various countries to get together at Davos or wherever, and to discuss between and among themselves common financial matters. After all, policy coordination between the banks may well contribute to both national and international financial stability. However, when legal rights are involved, these rights are still in part local and national in nature. No matter how seemingly identical the cases, there still may exist material distinctions in the case at the national level. More generally, seeking to achieve trans-national uniformity might further distance IP judges from the demands of their national settings. In a world where international elites are already under attack for allegedly being too far removed from their constituencies, are patent judges, in seeking to reach a more uniform consensus, in danger of falling into this same trap, to the detriment of both the patent judiciary and the broader community that is nourished by the patent system?