Exchanging Insights from Courtrooms on the Frontiers of IP Law

As judges around the world witness their court dockets swelling with increasing numbers of intellectual property (IP) disputes, bringing with them new and complex legal questions, thirty-three of the world’s most experienced IP judges came together for WIPO’s Master Dialogue on IP Adjudication – Judicial Perspectives in Washington, D.C., to take stock of and exchange experiences on their most challenging common concerns with their global peers.

From September 16 to 19, in the historic buildings of the United States Court of Appeals for the Federal Circuit (CAFC), the Master Dialogue gathered judges from Australia, Brazil, Canada, China, Chile, Colombia, France, Finland, Germany, Israel, Kenya, Mexico, Peru, Poland, Republic of Korea, Romania, South Africa, Turkey, the United Kingdom and the regional Court of Justice of the Andean Community, together with twelve eminent U.S. judges from across the country.

Over two and a half days, the Master Dialogue program covered the topical questions that judges are already being asked, or will soon be called upon to answer, on themes such as Standard Essential Patents (SEP) and their licensing on Fair, Reasonable and Non‑Discriminatory (FRAND) terms, as well as the further complicating overlay resulting from the interface of IP with competition law.

“The Federal Circuit was thrilled to play a part in bringing so many thoughtful jurists together for this Master Dialogue,” said Judge Kathleen O’Malley, who serves on the CAFC and as a member of the WIPO Advisory Board of Judges. “Keeping the channels of communication open and continuing to learn from each other is critical to maintaining a strong and fair international intellectual property system.”

In addition to a visit to the United States Supreme Court, the participating judges also had the chance to hear insights directly from prominent figures, Mr. Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, and Ms. Karyn Temple, Register of Copyrights and Director of the U.S. Copyright Office, into the latest developments and most pressing issues in the field of intellectual property in the United States.

Building a global network of IP judges

Organized by the newly-established WIPO Judicial Institute, the distinguishing feature of the Master Dialogue is its emphasis on the exchange of practical and real-life knowledge and experiences, with sessions built around small group discussions and formats such as debates, to maximize the interchange of perspectives and ideas among the jurisdictions.

For a number of participating judges, including Judge Anaya Dominguez of the Specialized IP Division of the Federal Administrative Court of Mexico City, this high level of interaction was the most significant element of the experience. The program enabled some judges to share the challenges they face in their courts with international colleagues for the first time; while for others who expect to soon receive new kinds of IP disputes, it was an opportunity to hear from their international peers who have already navigated the complex issues involved.

As remarked by Dialogue Leader Judge Du Weike of the Supreme People’s Court of China, judges are “really standing at the frontiers of the law” when grappling with the evolution of IP disputes, and the possibly significant extraterritorial consequences of judicial decisions, and especially so where those disputes also entangle other areas of law.

Nonetheless, the participating judges believed that, despite the differences in legal traditions and judicial systems among the jurisdictions represented, it was possible to understand and usefully exchange perspectives using a common language of intellectual property.

Former Chief Judge of the CAFC, the Honorable Paul Michel, who served as a Dialogue Leader in the program, observed that,

the strength of the Master Dialogue program is that it is about judges learning from judges. There is great potential for judges to learn from each other about the differences between countries, and the consequences of these differences for how IP disputes are adjudicated.

Through the Master Dialogue, WIPO aims not only to stimulate productive discussions during the program, but also to foster the development of a global network of IP judges to pursue this transnational dialogue, as courts continue to adapt to keep up with the role of IP in a changing world. As Judge Rachel Barkai of the Tel Aviv District Court commented, “I have a feeling this is just the beginning of a dialogue.”

An annual opportunity to partner with a national court

Organized in close collaboration with Judge O’Malley of the CAFC, the Master Dialogue was privileged to be hosted by the Court, with the support of Chief Justice Sharon Prost, and a welcome address delivered by Judge Kimberley Moore.

The 2019 program was the second edition of a new WIPO initiative to promote practical exchanges between experienced IP judges from around the world. The first Master Class on IP Adjudication – Approaches to Remedies was held in collaboration with the Supreme People’s Court of the People’s Republic of China in Beijing, from August 21 to 23, 2018.

The Master Class is an annual program, with the venue and theme for 2020 to be announced soon.

What’s next for judges at WIPO?

The 2019 WIPO Intellectual Property Judges Forum will take place at WIPO Headquarters in Geneva, Switzerland, from November 13 to 15, 2019. Find the program and further information on the Forum webpage. Registration is open to all members of national judiciaries, as well as members of quasi-judicial bodies or administrative tribunals that actively adjudicate IP disputes.

The inaugural edition of the Forum in 2018 brought together 119 judges from 64 countries for wide-ranging discussions over three days. You can read about the issues explored in last year’s Report .