At his IP Think Tank Blog, Duncan Bucknell reflected upon Doug Lichtman’s recent IP Colloquium interview with Federal Circuit Chief Judge Michel — click here to read Bucknell’s post and here to get the Michel interview, which you is well worth any patent litigator’s time. Bucknell’s take away from the interview is a very timely question in light of the news that patent reform may be back before Congress in 2009:
If the intellectual property laws could be codified so that the result in intellectual property disputes is always certain – even though it might not be fair – would that be ok? Or would you prefer that the legislative guidelines remain broad and the fine details in each circumstance be worked out in context – in litigation? (As happens today?)
I think this is a difficult question to answer. My experience is that many, maybe most, would like certainty over justice in the abstract. It makes sense to reduce transaction costs and to provide businesses increased certainty. But when asked the same question about their own IP case, most prefer a more complex and less certain system designed with the goal of reaching fair (I would substitute the word "just" here) outcomes.