Saturday, December 31, 2011

Great Expectations from the New Year: A Reasoned Approach to the Law

Since 2011 is on its way out and all of us are eager to usher in the New Year, each of us for our own reasons, I thought I might set the tone for the coming year with a few “judicial” expectations, which resonate with at least a non-negligible cross-section of the Indian Patent Bar.

For quite some time now, Indian Patent Practice has been largely driven by consensus among practitioners, which in turn is born from experience with “Office Practice”. However, this is precisely the sore point because there is a dire need for interpretational guidance from Courts, the IPAB, and Patent Offices in that order because power/authority, more than logic, seems to dictate the course of judgments/decisions.

What the Courts hold, the IPAB follows, and the Patent Office applies. Therefore, for me, it is now the duty of Courts to use every opportunity that cases before them present, to interpret and clarify the law. That said, Courts are bound by a few rules which flow from our system of adversarial jurisprudence:

1. Courts are not at liberty to express their views on all and sundry unless the issue is relevant to a case at hand;

2. Even in issues which are relevant, Courts are bound by issues raised, submissions made by parties on those issues and the material placed before Courts to substantiate the submissions.

What comes out of this? To me, what this means is that it is the duty of parties to assist Courts to the best of their abilities, which is not necessarily antithetical to protecting their interests in a case. But then, more than parties, it is for counsels to put their best foot forward every time they put forth their Client's point of view on the law before Courts (This is not to be construed as taking a patronizing tone).

This is all the more necessary because Indian Courts still do not have a hang of Patent Law, so it falls on the able shoulders of the Indian Patent Bar to assist Courts on the subject and the law. Some of the best judgments are the product, not of the efforts of the Bench, but of the diligence, industry and legal acumen displayed by members of the Bar.

Specifically, is there something that we can do? For starters, I think what the Bench and the Bar can and must do is to stop quoting and citing precedents ad nauseam without explaining the relevance of precedents to the facts of a case.

Precedents are created, not by parroting precedents, but only by original thinking. Fastidious adherence to precedents will only create a tautologous monster, which may ultimately come back to haunt us and bite our celestial rumps!

In this regard, following are the observations of the Supreme Court in Haryana FinancialCorporation v. Jagadamba Oil Mills (AIR2002SC834):

“19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems, nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. 

To interpret words, phrases and provisions of a statute, it may become necessary for judge to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes.

21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

22. The following words of Lord Denning in the matter of applying precedents have become locus classicus:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."


"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

I couldn’t have said it better than the blessed Lord Denning! These words must guide us every time we find ourselves short of authorities to buttress our cases.

After all, “legal research” is not merely pulling out a judgment from a database and quoting from it without internalizing its essence. Legal research, for me, is to be able to use one’s common sense, the fundamentals of the subject, the wording of the statute, facts of the case and fairness to chart the course of logic. How else are precedents created?

I don’t intend to pontificate, the idea is to merely voice what most of us must have thought at some point or the other. Also, aren’t we just tired of looking for precedential reinforcements from either sides of the Atlantic? Don’t we look forward to the day when we cite Indian decisions? Or better, don’t we look forward to the day when Indian decisions are cited on either sides of the Atlantic? I, for one, certainly do!

Wishful thinking some might say, Optimism is my way of putting it (Please check out the Video Links at the top of the page). I have no qualms saying it’s a very real scenario which is not too far away in the future, provided we work for and  towards it.

On this note, on behalf of the blog, Here’s Wishing Everyone (not just our readers) a Happy and Prosperous New Year!

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