Learning from Lobbying: Mapping Judicial Dialogue Across National Borders Among European Intellectual Property Judges
Posted: 8 May 2020
Date Written: May 2012
Abstract
This paper looks at dialogue and collective learning across borders through personal networks of judges involved in judicial and institutional entrepreneurship at the European level, i.e. in building a new intellectual property regime for Europe (with respect to patents). We focus on judges participating in the so-called Venice Forum, a field-configuring event, bringing together European patent judges, European corporate lawyers specialized in patents, and the European Patent Office, all involved in harmonizing their interpretations of the 1973 European patent, and in lobbying for the construction of a European Patent Court. Empirical observation and a survey shows that personal networks of discussion with foreign judges, reading their work and reference to their decisions do exist and follow a specific pattern in this milieu, and can be mapped. Our network study shows that judges from Northern European countries are more active in this dialogue than judges from other countries. The learning process is driven, to some extent, by a small subset of super-central judges who frame this dialogue and can be considered to be opinion leaders in this social milieu. We measure a strong level of consensus among the judges on several controversial issues surrounding the procedure of a possible future European Patent Court (especially the issues of inventive step, of use of experts, and of scope of protection). But strong differences between them remain. Dialogue and collective learning do not, on their own, lead to convergence towards a uniform position, the "European compromise", in these controversies that are still characterized by the democratic deficit associated with this type of institutionalization process.
Keywords: Institutional entrepreneurship, European patent judges, collective learning, discussion networks, reading networks, citation networks, lobbying, democratic deficit, patents
JEL Classification: L, M
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