1.2.3 Judicial institutions and their specialization
The judicial structure responsible for handling patent disputes is discussed in the ten chapters, highlighting the specialized elements specific to patents.12 The nature of judicial specialization varies among countries and takes different forms, including specialized divisions within existing civil or commercial courts,13 stand-alone courts specialized in patent cases,14 or a combination of both.15 Specialization can occur at the first instance or appeal level, and the final decision is often made by a non-specialized higher court.16 In some jurisdictions, there is no specific assignment of patent cases, but courts can attain specialization through the concentration of patent cases.17
The type and profile of the adjudicators who make up the court may also differ, including legally qualified or technically qualified18 judges, as well as juries.19 Some jurisdictions are based on a judicial career system, where judges normally embark on a judicial career early on and, at times, with mandatory rotation between courts on a regular basis.20 In those jurisdictions, efforts will be made for patent cases to secure judges who have studied science or engineering and provide regular training on technical matters. In other jurisdictions, judges are recruited from the ranks of qualified lawyers who have practiced patent law for a substantial time.21
Many jurisdictions have court personnel who are well-versed in technology and in analyzing technical evidence to support the judges during the pendency of the patent case.22 Their role may range from recording evidence when manufacturing processes need to be ascertained to inquiring about and reporting upon any question of fact or opinion. They do not address questions of interpretation of the law and do not assist the judge in deciding the case. In some jurisdictions, courts have the authority to appoint advisers who can assist the court in understanding the technology and the technical evidence presented in the case.23