Friday, December 31, 2010

"Generalizing" Intellectual Property Law

First Things First, On New Year's eve, Here’s Wishing All The Readers a Very Happy and Prosperous New Year!

No, this is not another long-winding post on patents; this is our mission statement for the coming Year. The mission statement is the product of my experience in Indian Courts in the last year or so. If I had to capture in a nutshell my lesson from the last year, it would be this:

Patent law is law; it is not patent science or patent technology!”

I think this applies broadly to intellectual property law as a whole. One prevailing opinion among general practitioners of law, that I have interacted with, about IP lawyers is that the latter have successfully alienated intellectual property law from the “mainstream”. 

Intellectual property lawyers, in the eyes of a cross-section of the general legal fraternity, consider themselves as an entirely different breed which expects “special treatment” from Indian Courts. Not just that, intellectual property lawyers are not considered to be conversant with “procedure” i.e. Code of Civil Procedure, known as CPR in the UK (which for many, is an understatement...)

Regardless of this opinion being a verity or a myth, I think it deserves serious introspection on the part of the IP fraternity. There is absolutely no doubt that the very nature of IP requires acknowledgment that one has to approach the subject differently. That said, IP law is law at the end of the day, notwithstanding the fact that certain forms of IP relate to technology. 

This means:

1. Settled canons of statutory interpretation and principles of equity cannot be given a go by; at best, they can be suitably adapted.

2. IP civil enforcement actions are governed by the Code of Civil Procedure, so there’s no escaping knowing the CPC well (!)

3. IP laws, for all the niche treatment they are given as laws which source their roots to TRIPS, are still subservient to the Supreme law of the land- the Constitution (obvious though it sounds, point of research may be?).

Therefore, there is a need to “generalize” IP because an IP lawyer, whose fundamentals in general concepts of law are weak and whose grasp of procedure is shaky, is no good. He might as well shove all his vaunted knowledge of IP into the wheelie bin, if he does not know the requirements of the forum. I say this because from what little I have seen, catering to the demands and sensibilities of the forum is half the battle won. 

From a practical point of view, Indian Courts, barring rare exceptions, have very little patience for all the “gyaan” (“knowledge”) that an IP lawyer is waiting to impart (ahem..spout and spew) to the Court by way of arguments. 

Consequently, it is critical for an IP lawyer to know how to fashion his case and present it for the (Indian) Court’s digestion. This is not possible until he “blends in” with the general legal fraternity, and talks to them in a language they understand. 

It is precisely in this direction that our efforts on this blog will be directed henceforth. “Generalizing IP” is our mission statement, atleast for now. To this end, we will try and present our analyses in as “general” a manner as possible, without sacrificing the nuances and subtleties of IP at the altar of “generalization”. 

Since IP law, like any other branch of law, is a cow that can be tied to any tree, we will attempt to tie IP law to Constitution, conventional proprietorial jurisprudence and torts (and therefore equity).

On a personal note, Constitutional law being my first love, I shall personally strive to connect IP law with the Constitution. (And sometimes, I may write on Constitution only to provide our “general” readers a respite from IP)

Importantly, we will discuss litigation procedure rigorously and explain its application to IP suits, as much as possible. It goes without saying that our readers are more than welcome to share with us their opinions and insights on generalizing IP.

We hope that in doing so, we would have contributed to increasing IP awareness among laypersons...and we would have also contributed our mite to dispelling the myth that IP lawyers are not on par with general practitioners when it comes to their knowledge of procedure.

For now, let’s welcome the New Year with prayers and the hope that it brings peace, enlightenment and prosperity in all our lives on all fronts!


  1. little belated but hny nevertheless

  2. Thanx a ton! The Year's still New, just a week old still counts for New all the same :-)