Is IP a Lex Specialis?
ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
Chapter 9: Provocations and challenges concerning enforcement and civil procedure in IP
Prosaic as they may seem, the rules of evidence, standards and burdens of proof, and provisional remedies, as well as the rules which govern the progress of cases and the conduct of trials, could well have a very significant effect on how punitive IP is in practice. These rules matter, both for the parties involved in litigation and for the health of the IP system as a whole. Well-designed litigation procedures can make the whole IP system work, but bad design can generate more litigation and costs, and undermine IP’s positive effects. This chapter argues that important things are happening, both internationally and domestically, in civil and criminal procedure and remedies specifically relating to IP, and that IP scholars need to pay more attention to these developments. More importantly, this volume addresses the question whether IP is a lex specialis: a specialised set of rules; a kind unto itself; separate to and different from other bodies of law. One purpose of asking this question is to explore whether doctrines and ideas from other bodies of scholarship can assist us to resolve problems and puzzles in IP. Developments in the civil procedure of IP law may be critiqued using implements from outside the usual IP toolbox.
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