Intellectual Property and General Legal Principles
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Intellectual Property and General Legal Principles

Is IP a Lex Specialis?

Edited by Graeme B. Dinwoodie

The rule of lex specialis serves as an interpretative method to determine which of two contesting norms should be used to govern. In this book, the lex specialis label is broadly applied to intellectual property and connects a series of questions: What is the scope of intellectual property law? What is the relationship between intellectual property law and general legal principles? To what extent are intellectual property laws exceptional? Drawn together by leading IP scholar Graeme Dinwoodie, these questions and others are answered carefully and reflectively by a team of expert international contributors.
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Chapter 9: Provocations and challenges concerning enforcement and civil procedure in IP

Kimberlee Weatherall


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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