This year's Kay Uwe Jonas Memorial Lecture was given by Dirk Visser (IP professor at Leiden University and an attorney with Klos Morel Vos & Schaap) on how judges decide their IP cases.  Dirk started with an appraisal of Oliver Wendell Holmes' aphorism that the prophecies of what the court will do in fact, and nothing more pretentious, is what is meant by law. Equally true, but more unresearchable, is Martin Shapiro's observation that "Law is not what judges say in the reports but what lawyers say -- to one another and to clients -- in their offices". Asking judges what they do is another way of reaching the answer, but judges are never wrong in their own eyes. There's no evidence that judges are smarter than other people, however, and they appear to make decisions the way other people do.

Daniel  Kahneman's book on Thinking Fast and Slow should be read by everyone, said Dirk: it tackles heuristics and suggests that careful, slow, premeditated thinking may not be better than intuitive, spontaneous ones. Dirk also recommended Antonio Damasio's work Descartes' Error  - a study of people with brain damage which left them bereft of emotions. How would they make decisions that required feelings? Essentially, where any decision fell to be made on the basis of personal preferences alone, and not logic, his subjects couldn't make it.

Returning to IP, it's a subject that is based on gut feelings that generally relate to innovation being good, imitation not good.  Equally, gut feelings dictate that competition is good, but monopolies are bad. Dirk explained that his own personal gut feelings had varied in accordance with the interests of the clients of whichever firm he was acting for act the time. Dirk went on to review the law through the eyes of other disciplines, including the social and political sciences, psychology, the neurosciences and biology. 

Dirk then related the story of the 296 Dutch trade mark infringement actions handed down between 2006 and 2011. This research, inspired by Barton Beebe's own empirical study of the US multifactorial infringement tests, indicated that legal tests are applied in a different way from the manner in which they are expressed. His research results didn't really prove anything, but it was worth publishing even if only to save other people doing the same research later. In 2008 Dirk interviewed 17 judges: would they be prepared to talk to him? As an academic, yes, but as a practitioner, no, perhaps? Appellate judges, who always sit in panels of three, all refused to speak to him. With anonymity promised, the judges said they were only applying the law and were quite comfortable with their own approaches to judging, though they were often less happy with the approaches of their colleagues. Preparation time was generally brief, so as not to waste time when cases settle, and the judges generally had an idea of how each case would go before they heard it.  Judges would frequently discuss their cases with their colleagues,secretaries, spouses and sometimes even their children, before reaching their conclusions -- though the stated truth is that "everything happens during the trial hearing". As for survey evidence, judges don't favour it; witness evidence doesn't make them much happier. They are far more comfortable with the evidence of their own eyes.

The constantly changing criteria for infringement -- first Dutch, then Benelux and now EU -- don't make much difference in reality, said Dirk, first with trade marks and now with copyright and unfair competition. Bad faith and intent are always the most important features of their decision-making.  Riding on the coat-tails of another's reputation and the use of keywords, are areas in which these criteria fall within the scope of judicial decision-making.  Dirk concluded with rousing accounts of various items of RED BULL and BULLDOG-related litigation, to which no blogpost could do justice ...