Intellectual Property Rights and Exclusive (Subject Matter) Jurisdiction: Between Private and Public International Law

INTRODUCTION A. Exclusive Jurisdiction Between Public and Private International Law B. Common Law and Civil Law Perspectives I. THESES PURPORTING THAT COMITY, THE ACT OF STATE DOCTRINE AND THE TERRITORIALITY PRINCIPLE ESTABLISH IMPLICIT EXCLUSIVE JURISDICTION RULES A. The U.S. Court of Appeals for the Federal Circuit Voda Judgment and the U.K. Court of Appeal Lucasfilm Decision B. The ECJ (CJEU) GAT Decision II. EXCLUSIVE JURISDICTION RULES ARE NOT ESTABLISHED EITHER BY COMITY OR BY THE ACT OF STATE DOCTRINE AND THE TERRITORIALITY PRINCIPLE, BUT RATHER ARE RENDERED ILLEGAL BY THE PUBLIC INTERNATIONAL LAW RULES ON THE RIGHT OF ACCESS TO COURTS: THE SUBJECT MATTER AND DELIMITATION OF THIS RESEARCH III. DENIAL OF JUSTICE AND FORUM NECESSITATIS A. Denial of Justice B. Forum necessitatis C. Sources of Law Hierarchy D. EU Brussels System E. Exclusive Jurisdiction in the Brussels System IV. THE FUNDAMENTAL HUMAN RIGHT OF ACCESS TO COURTS A. Right of Access to Courts B. Applicable Law C. Nature of the Proceeding D. Possible Restrictions of the Right E. International Jurisdiction Rules F. Alternative Means of Recourse G. Exclusive Jurisdiction V. EXCLUSIVE JURISDICTION IMPLIES A DENIAL OF JUSTICE AND VIOLATES THE FUNDAMENTAL HUMAN RIGHT OF ACCESS TO COURTS A. Denial of Justice B. Violation of the Fundamental Human Right of Access to Courts C. PIL and Human Rights Solutions VI. COROLLARIES A. General Corollaries B. European Union IPRs C. European Unified Patent Judiciary D. Internal Jurisdiction E. Forum Shopping VII. THE INTERNATIONAL RESPONSIBILITY OF THE FORUM STATE FOR ITS ILLEGAL DECLINING OF JURISDICTION A. Remedies for Denial of Justice B. Remedies for Violation of the Fundamental Human Right of Access to Courts INTRODUCTION A. Exclusive Jurisdiction Between Public and Private International Law In the recent past, prestigious courts around the world have refused to adjudicate cases relating to foreign registered or unregistered intellectual property rights (hereinafter: IPRs), where the proceedings concerned an IPR infringement claim or where the defendant in an IPR infringement action or the claimant in a declaratory action to establish that the IPR is not infringed pleaded that the IPR is invalid or void and that there is also no infringement of that right for that reason (so called validity issues incidentally raised). (1) In these cases the refusal to adjudicate the foreign IPRs infringement and validity claims was grounded on exclusive subject-matter jurisdiction (exclusive jurisdiction) rules. (2) According to those rules, the State that granted or recognized the IPR has the exclusive jurisdiction to address claims related thereto, independent of its also having personal jurisdiction over the defendant. Among those decisions (3) are the Supreme Court of Appeal of the South Africa Republic's Gallo v. Sting Music (4) decision of March 9, 2010; the U.S. Court of Appeal for the Federal Circuit's January 2, 2007 decision in Voda v. Cordis Corp.; (5) the U.K. Court of Appeal's December 16, 2009 decision in Lucasfilm Entertainment Co. v. Ainsworth; (6) and the Court of Justice of the European Union GAT decision of July, 13 2006. (7) These decisions are grounded on the assumption that since IPRs relate to a State's sovereignty or domestic policies, IPRs are granted through State acts and are limited to the territory of the State that granted them. Therefore, if a State other than that which granted or recognized the IPR exercised jurisdiction, this State would create an unreasonable interference with the State who initially granted or recognized the IPR at stake. To avoid this unreasonable interference, the petitioned courts decline jurisdiction in foreign IPRs cases. …