Monday, November 25, 2013

By David Kumagai, 2L

 

From sperm researcher to Federal Court judge, Justice Annabelle Bennett presides over a court where science and the law must learn to co-exist.

The Australian judge spoke to a sold-out crowd of intellectual property lawyers and academics at the second annual University of Toronto Faculty of Law Patent Colloquium, hosted by the Centre for Innovation Law and Policy at the Hart House Great Hall on Nov. 22.

In her keynote address, Justice Bennett shed light on Australia’s novel approach to patent litigation, and explained how her background as a doctorate student studying comparative sperm has helped her on the bench.

‘Hot-tubbing’ experts

Aggressive case management, and a practice known as ‘hot-tubbing,’ are two keys to the Australian court’s treatment of complex patent lawsuits.

“It can be horrible litigation for a judge,” Judge Bennett explained, “with hundreds of claims.”

When she hears IP cases, such as the massive Apple-Samsung dispute currently before her court, she does her best to trim the fat from the claims and cross-claims.

The world has changed, and patent law is cool now.

“We try to do what we can as much as possible to limit things,” she said. “Thankfully, the days when judges were just sitting there and not saying anything are over.”

Donald Cameron, a litigation partner at the IP firm Bereskin & Parr, saw the appeal of Australia’s approach: “Australia has the right idea,” he explained, “early, aggressive case management by the trial judge. They narrow the case to focus on the serious issues early, and cut out a lot of the nonsense that can happen in interlocutory spats between counsel.”

As for hot-tubbing, the Australian court asks each side to present an expert, who are then given a list of questions from the judge. The experts must work together—without their lawyers—to prepare their answers for the court.

“Australia is known for having invented the practice of hot-tubbing experts,” explained Jennifer Millson, associate director of the Centre for Innovation Law and Policy.

“One of the important themes of the Colloquium is to encourage a conversation between the bench and the bar about the patent litigation process outside of the adversarial environment,” Millson explained. “It’s important to get perspectives from outside one’s experience, and to see how other court systems have dealt with the issues we face.”

‘Fear factor’

Justice Bennett stressed the value of expediency throughout her presentation. However, she also said it can pose a problem for judges.

“The trouble with patent litigation from a judicial perspective,” she said, “is if you cut everyone too short, the judge will be left not understanding.”

This is where her days in the laboratory have helped her on the bench, she explained. “There is no doubt that it is hard for a judge to come in and make a judgment about complex technology,” she said. But having a PhD in biochemistry helped eliminate that ‘fear factor’ that can intimidate some judges.

Judge Bennett recalled telling friends that she wanted to go into patent law. She said people would give her an incredulous look, and ask “Why?”

Science to law, “don’t they think differently?” she remembered being asked. “Logic is logic,” was her response.

Many years later, Judge Bennett said she is pleased with her decision, especially in the face of a technology boom that has thrust IP litigation into the headlines.  

“The world has changed, and patent law is cool now,” she said.

 

In addition to Judge Bennett’s address, the event included four panel discussions, featuring 16 prominent academics, practitioners and judges from across North America. Among the speakers were Catherine Lacavera, Director of Litigation at Google; Ildiko Mehes, Vice-President and General Counsel of Teva North America, Genetics; and Judge Kathleen O’Malley of the U.S. Federal Circuit.