Specialist or Generalist Judges in IP: Is the Jury Still Out?

  • 02 mai 2023
  • Andrew Shaughnessy, Torys LLP

On March 2, 2023, the Federal Court announced a pilot program to create 'Chambers' of judges in the areas of: 1) IP/Competition; 2) maritime and admiralty; and 3) class actions.[1] The notice indicated that the Chief Justice will assign IP, competition, and maritime and admiralty matters to members of the Court who have expertise in those areas, with the stated objective of developing expertise within those silos in the Court.

The Chambers are presented as rosters of judges. These judges will be assigned to: (a) motions to be heard at special sittings; (b) case management of class actions; and (c) hearings (on the merits). For assignments to the Intellectual Property and Competition Chambers, the Judicial Administrator will also consider sub-specialties related to practice areas particular to IP (e.g., copyright, trademarks, patents, and competition). Because the Federal Court Registry automatically categorizes and codes all proceedings, parties do not need to make formal requests for a matter to be assigned to a judge from the relevant Chamber. Some judges are listed across all panels. Presumably, all Chambers’ members will also hear cases falling outside of these areas—judicial reviews, and other subject matter in Federal Court jurisdiction—though the specialization should have the effect of creating spikes in activity.

This begs the question: Is specialization in IP a good thing? It is probably true that specialized IP courts are better equipped to keep pace with and adapt to dynamic developments in IP law. With effective case management, a roster of specialist should better allow for the timely and effective handling of cases. There can be an improvement in the consistency of case law. The limited data that exists suggest that this may be a good thing. For instance: