Harmonization of IP litigation practice--still a long road ahead

Legal context. Notwithstanding the advanced level of harmonizationof IP laws, these substantive laws are still not applied ina harmonized way because of the vast differences in proceduralrules amongst the member states of the European Union. For example,the speed, type of relief, costs and potential drawbacks ofa legal action still vary substantially between countries. Thesedifferences continue to influence the choice of venue for manyIP owners and their adversaries. Key points. When a national or Community IP right is infringedand the potential acts of infringement (or infringers) are locatedin more than one jurisdiction, the situation might give riseto multiple parallel litigation in a number of countries. Awell-informed IP specialist will not advise on such a decisionwithout considering a number of issues, analysed in this article:(1) how and where to find evidence of the infringement, andits potential trans-border use; (2) whether the questions ofvalidity and infringement are inseparable (particularly forpatents); (3) the availability of injunctions reaching acrossnational borders; (4) the availability of so-called "torpedo"actions; (5) the recoverability of costs and attorneys' fees;and (6) the ability to protect confidential proprietary informationduring the litigation. Practical significance. As long as differences continue to existbetween Member States, the level of IP enforcement will continueto vary from one jurisdiction to another, and the type of reliefthat is sought by the IP owner will never be exactly the same.Of course this creates disparities and disadvantages. The advantageof this situation is that an IP owner, when he is confrontedwith a multi-jurisdictional IP dispute, can pick and choosethe best available procedural tools and remedies that are availablein each jurisdiction. So forum shopping is still the name ofthe game, as every experienced litigator knows.     

Judicial review,litigation effects and the ombudsman

Abstract

Judicial review is widely understood to be a remedy of last resort, but there remains little research on the extent to which the process can achieve meaningful redress. This article applies the results of a study into ombudsman judicial review to chart the outputs of the various stages of the process at which an outcome can be secured. The claim is made that ombudsman judicial review does secure a small level of success for claimants both in and out of court but that the rate of such success is lower for citizen claimants than the norm in all judicial review cases. The explanation provided for this pattern is that organisationally ombudsman schemes have learnt lessons from being repeat players in judicial review and are better equipped to integrate rule of law values than many other public bodies. Citizen claimants, by contrast, include a high proportion of inexperienced litigants-in-person for which the judicial review process is ill-designed to facilitate.     

论刑事诉讼与行政诉讼的冲突及其解决

为解决刑事诉讼中出现的行政问题及行政诉讼中出现的刑事问题,避免行政诉讼与刑事诉讼审理结果的冲突,应将两类诉讼中的相关问题分为本诉附属问题与审判前提问题,允许法院刑事审判庭在特定情况下审理行政问题;在对同一行为究竟应承担刑事责任还是行政责任难以确定时,以“刑事责任优先”为处理原则。     

Media libel litigation

The libel litigation system does not efficiently or effectively resolve media libel disputes. Protracted and expensive litigation neither restores plaintiffs' reputations nor protects media defendants from intrusive discovery and potentially large damage awards. This article demonstrates how research on the characteristics of the libel litigation process and the interests and concerns of the disputants was synthesized with research on dispute resolution processes to develop an alternative process for resolving libel disputes outside the courts. The article discusses the potential feasibility of the voluntary, nonlitigation alternative program, informed by research on dispute processing and libel litigation. An evaluation of the program is being conducted to examine attorneys' and parties' reactions to the program and to assess the extent to which the program provides effective solutions to the problems of the libel litigation system.     

The Attica litigation

In September of 1971, twenty-nine inmates and ten prison employees were killed at New York's Attica Correctional Facility when state law enforcement agents forcibly regained control. In the two decades since, aborted attempts at criminal prosecution have been followed by a maze of civil litigation in state and federal courts as prisoners, Attica employees, and their estates have sought monetary compensation for injuries, wrongful death, and alleged violations of civil rights. This paper draws together the major litigation stemming from the 1971 Attica events and suggests some implications for law and social control.     

环境诉讼的“破”与“立”

环境纠纷有多种解决手段．行政协调、民事协商和法律诉讼。司法是社会正义的最后一道防线,而环境诉讼即绿色诉讼则是保护环境的最后一道防线。环境诉讼制度是为解决环境问题．保护国家、社会环境的公共利益和人类环境利益而采取的一项司法救济措施,其在国外已被广泛接受并形成较为成熟的诉讼制度。然而．环境诉讼在我国却很难走上正轨,因为起诉难,审理难．判决难,搜集证据难,执行难,胜诉难等许多问题的存在,出现了无人起诉、无人去追究责任的问题,致使环境污染者逃脱了应有的法律制裁．国家和社会利益遭受重大损失,可以说环境诉讼在我国立法和司法领域还是一片盲区．本文对我国环境诉讼发展的制约因素及如何发展我国环境诉讼制度进行了探讨．以求有效维护国家、社会的公共利益．进一步完善我国司法制度。     

Web 2.0, wikis, and the IP Community

Legal context: The emergence of new web-based programs being used in the fieldsof patent applications and IP legal information has opened upa range of new opportunities for IP-related legal processesand knowledge sharing. Key points: This article explains the background to Web 2.0 applicationsand explores the potential for the use of wikis in various areasof IP. It notes the limitations, as well as the possibilities,of wikis and explains how they work in practice. It outlinesthree recent examples of wikis in the IP world, explaining howthey work and the significance of their overall objectives. Practical significance: The adoption of this technology by official bodies suggestswider future use and the appearance of unofficial sites showsthat current developments have already reached a stage wheremany IP practitioners can begin to interact and share knowledgein a way that has not been considered previously. It is conceivablethat developments in this area will be rapid and it is in theinterests of users to familiarize themselves with the use ofthis new ‘social software’.     

"Magical thinking," suicide, and malpractice litigation

Prospective clinical assessment of suicidality differs significantly from that used retrospectively in malpractice litigation. In the latter context, the judge or jury may be susceptible to hindsight reasoning and a disproportionate emphasis on the specific method of suicide, exaggerating its foreseeability and "magically" linking the means of death to the treating clinician, especially in the case of suicide by an overdose of prescribed medication. Such magical thinking, moreover, is rooted in the clinical context of suicide: The errors of reasoning observed in the courtroom exhibit striking parallels with the mind-set of the suicidal patient. An understanding of these dynamics suggests appropriate precautions for the clinician and thus contributes to the prevention both of suicide and of malpractice litigation.     

机关诉讼研究

行政权限是国家行政体制内的权力分工,在现实生活中,行政机关之间会在权限方面发生争议,权限争议可以通过不同的方式来加以解决。我国需要引进机关诉讼这一权限争议的解决方式,以加强行政法治化建设,促进依法治国。     

网络安全立法的探讨

伴随着国内网络建设高潮的到来 ,网络已逐渐成为计算机犯罪的最主要犯罪工具 ,有效防止网络犯罪是法制化的必然。