An extended interview article with the judge will be published on Managing IP next week covering broader IP matters
On meeting Richard Arnold, it quickly became clear that he is everything one might expect of an IP judge from the UK’s High Court. His office is decorated with bold, abstract paintings and has a bookshelf scaling the entirety of the longest wall containing a small library of patent law dating back to the beginning of the last century.
When I entered the room, he promptly and politely asked me if I would like a cup of tea. He then proceeded to teach me a new word that I hastily tried to look up on my iPhone under the table without him noticing.
‘Paginated’ means to indicate the series of pages by placing numbers or characters on each leaf, I soon found out. In addition to a fun scrabble word to throw at Mr Justice Arnold, should the opportunity ever arise, it is the form in which he would prefer all documents to be presented to him – as well as indexed and, preferably, colour coded.
But that’s not the only way he likes things done. One of the biggest mistakes he says parties make in court is presenting a badly assembled bundle of documents. While usually the fault of inexperienced trainees, compiling documents in a way that is easy to read and manageable to digest is one of the simplest things advocates can do to get on his good side.
“It’s often the simple things that aren’t done well that are the most irritating,” he says. “As trivial as it sounds, you really notice the difference when you get well-prepared bundles. It just requires a little attention to detail.”
“A good advocate would maximise his time on the good points and then move on quickly from the bad. If the advocate misjudges the matter, I might intervene to move him along”
While presenting documents in a clear and concise way is always helpful, the number-one thing he says advocates can do to please the judge is not litigate at all if possible. It is preferable, he says, to settle outside of court, whether that means toleration of infringement or finding an alternative commercial solution.
Loosely paraphrasing the Prussian general and military theorist Carl von Clausewtiz, Arnold tells Patent Strategy that his reasoning for this view is that IP litigation is commerce carried out by other means.
“At the end of the day, don’t engage in IP litigation for the sake of it. Think about your objective of how litigation is going to help you, including what happens if litigation goes wrong,” he says.
“From a judge’s perspective, litigation that has a clearly thought through commercial strategy is easy to work through. It’s amazing how many parties don’t do that.”
He adds that parties avoid the knee-jerk reaction of automatically fighting infringement in court.
“Sometimes it should occur to the litigator that rather than engage in litigation, they should perhaps instead invest in a settlement. Sometimes the sum to get them to rebrand is less than the cost of litigating and winning.”
Wisdom, of course, is knowing how to pick and choose one’s battles, which is why Arnold advises counsel to think about litigation in terms of their overall strategy: “Think of your long-term consequences as well as short-term consequences. I appreciate this is sometimes hard for counsel because they have their own clients pressuring them to take action and sometimes it’s not in their best interest. But it is the advocate’s job to take a wider view.”
Don’t fight bad points
When asked what advocates do to really annoy him, Arnold says: “Obfuscation and making bad points. It’s amazing how many parties mess up a good case by arguing bad points, and too many points. It’s self-defeating.”
While arguing a bad point will most certainly get under his skin, advocates shouldn’t interpret his occasional silence as approval. Like everything else, Arnold knows how to weigh up the pros and cons of what is worthy of his time and intellectual energy.
“I don’t always intervene on a bad point. Experience has taught me that sometimes you waste more time intervening than remaining silent and letting them move on,” he says.
While he does not suffer bad points lightly, Arnold does feel compassion for advocates operating under the pressure of pushy clients. He advises the best way to satisfy the whims of a client insisting on a bad argument is to state it briefly and then move on to the stronger points.
“A good advocate would maximise his time on the good points and then move on quickly from the bad. If the advocate misjudges the matter, I might intervene to move him along.”
He advises parties to always prepare their cases in the most comprehensible and efficient way possible. Above all, litigators should always remember that at the end of the day they want the judge to decide in their favour.
“It is amazing how many times you see advocates that have prepared their cases without winning in mind.”
How he makes a decision
Contrary to the belief of some of our readers, Arnold does not decide a case by kicking back in his armchair with his feet on the desk while listening to George Michael and mulling over arguments out-loud with his wall. Rather, he says, he approaches cases systematically, making sure he does not decide the outcome of a case before hearing all arguments.
“I have a particular approach which is not shared by all judges. I am aware of the dangers of cognitive bias, although I am very well aware of the research showing it is almost impossible to avoid. But I do my best,” he says.
He employs a strict mental technique that involves breaking a case down into its parts and then examining each one in sequential order. “I see where reason takes me on each issue, and then look at the overall outcome it produces. Patent cases are almost the paradigm where a structured approach is the easiest.”
He begins by asking who the skilled person is to whom the patent is addressed, followed by what general knowledge the skilled person might have when examining the file. Once decided, he turns to the prior art and begins to ask about obviousness and the question of sufficiency.
“In most patent cases, there is a clear logical structure to follow where a sequence of decisions impacts the decisions further down the line. That is why it is even more important for patent cases to approach them in a logical way, because each decision will have an impact on the next,” he says.
While logic is very much a part of who Arnold is, he would like it noted that he, and other judges, are not out of touch with the public. He says: “This idea you get reading the newspapers that judges are out of touch is very irritating because we see daily stories of untold human misery of all descriptions.”
As testament to Mr Justice Arnold’s diverse passions, I did get a glimpse at the bottom left corner of his bookshelf which seemed to include all the most interesting reads. Mixed in with old and not-so dusty law anthologies were works by Marxian economist and philosopher Amartya Sen and US Supreme Court Justice and abolitionist Oliver Wendell Holmes.
Unfortunately time ran short before Patent Strategy and Arnold could engage in any real discussion on Sen’s philosophy. Any further discussion or Scrabble match will have to wait for the next occasion.
