Commercial laws (and particularly IP laws) should serve market efficiency, and should facilitate the international market place. This was the theme of a talk by the Honorable Randall R Rader at the annual Sir Hugh Laddie Lecture at University College London last week, organised by UCL’s Institute of Brand and Innovation Law (IBIL). Chief Judge Rader heads the United States Court of Appeals for the Federal Circuit, and is therefore the senior, specialist IP judge in the US.
In his talk, Chief Judge Rader provided insights into how US laws are matching up to the above objective. He also expressed the view that national laws across the globe are generally moving in the common law direction. While this may be true on a global level, IP Draughts is concerned that, within Europe, the opposite may be happening. As steps are taken to harmonise EU laws (eg in relation to the Common European Sales Law or the Unitary Patent) we are moving in the direction of civil law and specifically German law. This trend is increased by the fact that many of the recent EU members, particularly those from former Soviet countries, have adopted new systems of law that look remarkably like the German civil code.
The judge’s main comment on the EU Unitary Patent was: try to remove Articles 6-8 from the draft legislation. These Articles give ultimate jurisdiction to the European Court of Justice, which has no experience of IP cases and takes an excessive amount of time to reach decisions. Since he made those comments (which have also been made by many IP judges and practitioners in Europe), UK Prime Minister David Cameron stuck out for this change in his negotiations with other EU leaders. The change was agreed by EU leaders, but only as a “suggestion”, and it remains to be seen whether it will actually happen - members of the European Parliament don’t seem keen on making the change. Whatever happens next, praise is due to Philip Westmacott and other senior practitioners who have put a great deal of work into lobbying the UK Government on an issue that would not normally rise up the political agenda to the point where it is the subject of personal negotiations by the Prime Minister.
Interesting and valuable as Chief Judge Rader’s comments were, IP Draughts cannot help picking him up on one point: his opening joke. Unfortunately, no-one had warned the judge that the last North American judge to speak at an evening event of IBIL – Canadian Supreme Court Judge Marshall Rothstein – had opened with essentially the same joke – the “you’re not in my wildest dreams” joke. Amusing as this joke is on first hearing, it doesn’t bear repeating. It also seems to be a recent favourite with US presidential contender Mitt Romney. Is there an American judge and politician joke-book that they get this joke from? If so, it needs to be updated. And IBIL should keep a log of opening jokes from speakers, and send it to prospective speakers in advance of their talks, so that this serious problem can be avoided in future.