Specialised IP Judiciary: What Are the Key Elements to Consider when Establishing or Reforming an Effective IP Court?

Abstract

Copyright © 2021 The Author(s). Intellectual property (‘IP’) is one of the key instruments for fostering innovation and promoting the growth of national economies. Given both the economic significance and the legal complexities associated with IP rights due to constant technological development, the benefits of having a specialised IP judiciary are being increasingly recognised across the globe. Many countries have either established or have been considering the introduction of various forms of such a specialised judiciary. This paper examines this trend and explores some key considerations in relation to the efficacy of an IP judiciary. It draws on some of the findings of a recently completed project funded by the UK government on the creation and functioning of a new IP court in Ukraine. While there is no ‘one-size-fits-all’ model when creating a specialised IP judiciary, the discussion in this article sheds light on a number of key factors that should be taken into account and carefully assessed when establishing or reforming such a judiciary. This includes specific considerations related to the structure of an IP judiciary, its location, the specialisation of IP judges, exclusive jurisdiction and other procedural issues. We believe that the guidance provided in this article will assist policymakers in their choices regarding the most suitable design of an IP judiciary for a particular jurisdiction, leading to the enhancement of its operation for the benefit of all the stakeholders in the IP enforcement system.