Argued Law is the Tough Law: Challenges and Difficulties in IP Practice

Xenia Li, China IP,[Patent]

On Aug 22, Justice Richard Arnold visited the Intellectual Property Court of the Supreme People's Court in Beijing. During the meeting, they exchanged views on issues such as intellectual property specialized trials. The meeting not only actively promoted the exchanges and cooperation between the Chinese and British intellectual property systems, but also strengthened the exchange of judicial communication.
After the meeting, China IP had the honor of conducting an exclusive interview with Justice Richard Arnold.
Court of Appeal and the role of Justice of Appeal
Justice Richard Arnold was called to the Bar of England and Wales in 1985 and became a QC in 2000. He was Chairman of the Code of Practice for the Promotion of Animal Medicines Committee from 2002 to 2008, an Appointed Person hearing trade mark appeals from 2003 to 2008 and a Deputy High Court Judge from 2004 to 2008. He was appointed to the High Court, Chancery Division in October 2008 and was appointed to be Judge in Charge of the Patents Court in April 2013. He was appointed as an External Member of the Enlarged Board of Appeal of the European Patent Office in March 2016.
In July, 2019, it was announced that Justice Richard Arnold was to be appointed as a Lord Justice of Appeal. He took up his appointment on Oct 1, 2019. The Court of Appeal, as the name applies, is the appeal court hearing appeals from lower courts in England and Wales. The Court of Appeal is split into two parts, a criminal division and a civil division. Justice Richard Arnold was appointed to sit in the civil division. The Court of Appeal also hears appeals from the Upper Tribunal, which is the second tier of the tribunal system. "As a Lord Justice of Appeal, I will be one of the 38 judges of the Court of Appeal, including the criminal division and the civil division," Justice Richard Arnold said.
When asked about his focus as he sits in as a Lord Justice of Appeal, he explained how the Court of Appeal distributes cases: the cases are distributed amongst the judges and he will be sitting in a panel of three judges. The panels are rotated so the compositions are changed about every two weeks. Moreover, each panel will have to deal with a variety of different cases. "I will have almost no influence at all over the cases that I hear. Of course, in time, I will expect a reasonable number of intellectual property cases, but in the short term, I would likely to be conflicted out of quite a lot of the cases, because I've heard them in the first instance."
IP cases and the Internet
The Internet has had a huge impact on intellectual property in all kinds of ways. Justice Richard Arnold highlighted three aspects in particular: new technology gives rise to new legal issues; new business models also give rise to new legal issues; the most significant is that the Internet is global while intellectual property is territorial.
For that reason, the Internet has provided a quite severe challenge to the intellectual property system, because there is a conflict between national intellectual property rights against global exploitation.
He gave an example to further explain the conflict. The phenomenon of standard essential patents exploited globally as a result of Internet-enabled smart phones has provided a real challenge to the ability of national patent systems and national courts which enforce those national patents.
Justice Richard Arnold has made plenty of important judgments in IP related cases, out of which he mentioned two cases regarding "website blocking" that had attracted most attention worldwide. The first case was the Twentieth Century Fox Film Corp. v. British Telecommunications case, also known as the Newzbin2 case, and the most recent Cartier International AG v. British Sky Broadcasting Ltd (Cartier v. Sky) case, which is the first website blocking case involving trademarks. The Cartier v. Sky case subsequently went to the Court of Appeal and Supreme Court.
"The judgments I gave in the website blocking cases do seem to have attracted a great deal of interest. As to why these cases have attracted so much attention, I think that's probably because I found myself in the process of developing a new remedy for intellectual property rights infringement, a kind of new area of law." He said, "I didn't set out to do that, it was just by chance. The legislation had been in place for several years before the Newzbin2 case, but it just so happened that I happened to be the judge who heard the first test case."
Regarding the remedy he talked about, Justice Richard Arnold gave a further elaboration. Fundamentally, in the website blocking cases, it was a remedy consisting of an injunction requiring internet service providers to block access by the subscribers to infringing websites, so that is a remedy for infringement which had not previously existed. Moreover, he said, "in the course of addressing the questions that arose in dealing with those cases, some of the issues which I had to confront were indeed procedural issues: precisely because it was a new remedy, there were no established procedures which the litigants could follow when making those applications, and therefore some of the questions I had to decide were precisely what procedure should be followed."
"Judges make laws"
Whether judges make law is one of the most frequently asked question in the countries that adopt common law. Justice Richard Arnold has quoted "judges do make law" from Lord Reed, who is widely thought to be one of the greatest British judges in the 20th century. But Justice Richard Arnold thought the quotation should be interpret in two ways.
Firstly, in England, the Common Law, which is the judge-made law that has been developed over a period of 800 years. It is a system of law in which decisions in individual cases over time build up a body of precedents, from which principles can be extracted and applied to further cases. But law can't stand still, therefore judges of each generation are faced with the challenge of developing the common law to meet contemporary problems.
Secondly, he explained, "even though nowadays, much of our law is contained in legislation passed by Parliament, nevertheless, you still require judges to interpret and apply it. No matter how detailed and well-drafted legislation is, there is always room for interpretation when you come to apply it to specific cases. Therefore, the courts become guardians of the interpretation and application of the legislation. "
The website blocking cases are a very good illustration of this, he exemplified, "because I didn't invent that remedy from nowhere, I was working on the basis of legislation that had been passed by the European Parliament. But the legislation was very general in its wording, and there were a lot of questions as to how it should be applied in any particular circumstances. Therefore what I had to do was to work systematically through the questions which arose in trying to apply that legislation to the facts of the cases, giving principled yet practical answers. So the answers that I gave to those questions, from a practical perspective, developed that area of the law. That is exactly the kind of process which Lord Reed had in mind, when he spoke as he did."
IP legislation and political change
Recent issues of Brexit and political change in the UK has triggered many discussions and concerns.
As far as Brexit is concerned, Justice Richard Arnold said, "the effect of the EU Withdrawal Act 2018, which Parliament passed last year, is that it will bring no immediate change to the law at all. The principle which underlines the Withdrawal Act 2018 is the principle of the continuity of the law. So the Act is designed to ensure that so far as possible, with very minor exceptions, our law the day after the exit will be the same as the law it was before the exit. So the point about Brexit is not that it changes UK law in itself, the point is that it gives the UK Parliament the opportunity to change the law in the future if it so decides."
As for the new government, he said, "As with any new government, they may put proposals for legislation before Parliament for their approval. At the moment, it is very early days and we will have to see what proposals the new government puts before Parliament. As a judge, none of that is my concern, it will simply be my job to interpret and apply whatever laws Parliament may pass."
The connection between theory and practice
Apart from being a barrister and a judge, Justice Richard Arnold is the author of Performers' Rights (5th ed, Sweet & Maxwell, 2015), the editor of the Halsbury's Laws of England title Trade Marks and Trade Names (5th ed, Butterworths, 2014), was editor of Entertainment and Media Law Reports from 1993 to 2004 inclusive and has published numerous articles in legal journals. He is also a visiting professor at the University of Westminster and was made an honorary Doctor of Laws by the same institution in July 2017.
The connection between theory and practice is important, Justice Richard Arnold said, "with my career first as a barrister, and more recently as a judge, I have also carried on a parallel career as an academic. Until I was appointed as a visiting professor by the University of Westminster, I hadn't held any academic post, but in effect, I have been an independent part-time unpaid academic. It may be partly because of my own academic activities, but I have long held the view that the academic lawyers have a great contribution to the law." He was not alone in holding that view, because the appellate courts in UK had in recent decades, paid more attention to academic writings when deciding difficult cases. Recently, this process had come to a logical conclusion because it was announced not long ago, that Professor Andrew Barrows, a prominent legal academic in the UK, was going to be appointed as a member of the Supreme Court in 2020.
He thought there is a close relationship between the academic approach to law and the judicial approach. "Nevertheless, the two activities are different, because the academic approach is more theoretical and more concerned with principle rather than decisions in individual cases. By contrast, the judicial role is always, at the end of the day, focused on deciding individual cases."
The relationship between theory and practice is well-illustrated by an example involving another famous judge in England in the 20th century, Justice Richard Arnold explained. Sir Robert Megarry was both an author and judge, and he had written a leading book on the subject of land law. He once had a case that involved an issue which he had discussed in his book, in which he had expressed his opinion on this issue. But when he was confronted with deciding a specific case involving that same issue, he was persuaded to adopt the opposite point of view. In explaining his decision, he famously said, "argued law is tough law."
Benefit from the exchanges between China and the UK
Before our interview, Justice Richard Arnold had visited the Intellectual Property Court of the Supreme People's Court in Beijing. When asked about his visit, he expressed his amazement, "as an intellectual property specialist throughout my career, I'm a firm believer in the virtues of specialization. Over the past 30 years or so, we have seen an increasing worldwide trend towards setting up specialized intellectual property court. In most countries, like the UK, the specialized courts are at lower tiers in the system. China, however, has taken this process to a logical conclusion by introducing a specialized court as part of its Supreme Court. I anticipate this will assist China to develop intellectual property law to meet the challenges we all face."
With the help of the Intellectual Property Office of the UK, and the British Embassy, there are communications and exchanges among judges between China and the UK. Justice Richard Arnold spoke highly of such arrangements, "it has been very beneficial for both sides. No one has a monopoly of wisdom and we can all learn from each other. The IPO and the British Embassy have done an excellent job in arranging for British judges like myself to come here, to visit Chinese courts, and to learn from what Chinese courts are doing. Equally, many Chinese judges have come to the UK to visit our courts, and I think these visits are beneficial to both sides. I hope they will continue."
At the end of the interview, Justice Arnold provided his advice to IP practitioners and law students, "There's no short cut but to study the law and study the facts of individual cases. The only specific piece of advice I would give that might be of assistance is to say that I do think it is important, when dealing with cases involving issues of technology, to understand the technology. I am well aware that is easier to say than to do, nevertheless, I do believe it is important. I believe it can be seen from my judgments that I've endeavored to put this into practice myself. The other thing that I always find very useful is to try to approach cases in a structured way, and I would commend that approach to others."

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