IIPI Conference Addresses Creation of Specialized Courts for Copyright Cases
September 13, 2002. The International Intellectual Property Institute (IIPI) hosted a two day conference in Washington DC titled "Specialized Intellectual Property Courts" on September 12 and 13. One of the topics addressed was the creation of specialized courts with jurisdiction over copyright law.
Bruce Lehman, the President of the IIPI, spoke at a panel on September 12. He stated that when you try to create courts with specialized jurisdiction "politically, you are obviously going to have some people who don't like it. And the strongest group of people who don't like it are usually the members of the bar, the lawyers, who live and work in geographical locations where the court is not going to meet. I think this is probably a problem in Europe as they struggle with creating specialized courts."
Lehman added that "I was around when we created the Court of Appeals for the Federal Circuit. And, the way we dealt with that was that we required it to sit in different jurisdictions throughout the United States. So that was one solution to the problem. Interestingly, however, even though the Court has been in existence now for twenty years, that has turned out to be a fairly meaningless provision of the law."
Edward Damich [PDF], Chief Judge of the U.S. Court of Federal Claims, who spoke on the same panel, stated that currently, the U.S. Courts of Appeal for the 2nd and 9th Circuits handle most of the copyright cases, and their bar associations would therefore oppose the creation of a specialized court for copyright cases.
Judge Damich also pointed out that one criticism of specialized courts is that "it is co-opted by the group that is before it." He reviewed legal developments in the Federal Circuit, and concluded that "it has not been co-opted by the patent bar." He stated, for example, that while the Court has been receptive to business method and biotech patents, it has also made it very hard to show infringement.
Michael Landau, a professor of law at Georgia State University Law School, argued for the creation of specialized copyright courts in the U.S. He reviewed the various issues where there are splits between various circuits. He concluded that specialized courts are necessary to create uniformity of interpretation among the different circuits, and to ensure greater predictability.
He argued for specialized copyright trial courts, in addition to an appeals court. However, he added, "I am not going to hold my breath on that one."
Panelists also compared the history of the creation of the Federal Circuit, with patent jurisdiction, to the possibility of the creation of a specialized court with copyright jurisdiction.
Gerald Mossinghoff, a former head of the U.S. Patent and Trademark Office (USPTO), related that prior to the creation of the Federal Circuit, the business community was losing faith in the patent system, but that the copyright system has not reached this state.
Martin Adelman, a professor at the George Washington University School of Law, made the point that the Judges' view will be taken into consideration. He also pointed out that many judges do not want to hear patent cases, but do want copyright cases. Judge Damich quipped that judges may not like to hear certain types of cases, but as soon as someone suggests taking away their jurisdiction over those cases, they develop a new appreciation.
Randall Rader, Chief Judge of the Federal Circuit, and Michael Ryan, a professor at the Georgetown University McDonough School of Business, spoke with reporters on September 13.
Judge Rader said that "Our specialized patent jurisdiction kind of grew out of our unique historical experience. We had the regional split problem, the inability of the Supreme Court to really deal with the magnitude of the problem. Even the legislative changes of 1952 did not seem to work. So, finally, we went to an institutional change -- the Federal Circuit. And, it worked so well, that it has kind of set an example, I think, for other nations in the world to try and use similar tactics.
Judge Rader continued that "the United States model may not be the model that works the best for every country. It may be better to have the expertise of the judges at the fact finding stage -- at the trial court level -- depending upon how it works for each country. At least the principle is, I think, sound that intellectual property enforcement is probably best when unified. I would think that would apply to copyright and trademarks as well. I don't think that is going to happen quickly here in the United States, just because of, kind of, the history, and those developed differently here."
Michael Ryan, a professor at the Georgetown University McDonough School of Business, stated that "there may be a couple of factors there that might play in. One would be the size of the country." He said that the number of judges and size of the economy would be important. He stated, as examples, that China or India probably could not have one holistic intellectual property court, but Jordan or Peru could.
Judge Rader added that "it has something to do with the number of cases too. If you have as many patent cases as we have, you know, about twenty-two hundred filed a year here in the United States, patent cases. That is enough to keep this Court, and a good many other courts plenty busy. In a country like Jordan or Peru, they probably have fewer patent cases, but if you combine them with the copyright, and the trademark, and the trade secret, and the trade dress, and the other types of cases, suddenly they have a docket that really demands attention."