Why Engagement with Indo-Pacific Judiciaries Matters

The courts play a crucial, and often final, role in the protection and enforcement of intellectual property (IP) and the treatment of international trade disputes in an economy. Whether in reviewing final administrative decisions of national IP offices, adjudicating civil infringement and related disputes over intellectual property rights (IPR) and international trade, presiding over criminal prosecutions of alleged criminal activity involving IP, or reviewing administrative and trial court decisions and judgments, the judicial branch of government is indispensable in setting the tone and the reality of the IP environment and international trade receptivity of an economy.

With the creation of specialized courts—designated judicial bodies for IP and international trade—and implementation of specialized rules of procedure for IP cases, the courts are taking an interest in decision-making in many Indo-Pacific economies. As technology continues to drive the expansion and complexity of IP and international trade disputes, courts will play an increasingly important role in an economy’s approach to global competitiveness, creativity, and innovation.

The inaugural Indo-Pacific Judicial Colloquium on Intellectual Property, Innovation, and Technology, convened by the U.S. Patent and Trademark Office (USPTO) in July 2023, with the support and involvement of the U.S. Judicial Conference Committee on International Judicial Relations, showcased the growing role of courts across the Indo-Pacific in IP enforcement. Many participating judges noted that this was the first time they had been exposed to such issues in the international context, and many argued that it was time for the courts to have a voice, if not a direct role, in grappling with them. If the United States intends to promote the strengthening of protections for IP globally, this type of engagement is likely to continue to receive significant buy-in from a wide range of partners.

The Indo-Pacific Economic Framework and Internationalization of IP Protection

Judge Roslynn R. Mauskopf observed at the recent Indo-Pacific Judicial Colloquium that “judges everywhere face similar challenges.” Relatedly, addressing common challenges to facilitate deeper economic engagement—which includes challenges around IP protection—is a goal of the Indo-Pacific Economic Framework (IPEF), which the Biden administration believes is central to its overall engagement strategy in the region.

Unlike traditional free trade agreements pursued by past administrations, the IPEF is envisioned as an economic partnership among like-minded trading partners, with a focus on best practices, good governance, and transparency, without creating binding obligations among the partners. The framework was officially launched on May 23, 2022, and currently comprises fourteen countries. In President Joe Biden’s view, the IPEF is “the vision for an Indo-Pacific that is free and open, connected and prosperous, and secure as well as resilient,” where economic growth is sustainable and inclusive, and both a domestic and foreign economic policy.[1]

The administration has hailed the IPEF as a robust economic arrangement that will be responsive to 21st-century trade challenges. The U.S. Trade Representative, Katherine Tai, has defended the approach of eschewing traditional market access commitments in favor of high standards in areas like digital trade, labor, the environment, and competition. She has been consistent in trying to weld together in the IPEF new rules governing trade in digital goods and services so as to create a set of rules that helps IP holders avoid the pressures and requirements in some countries to hand over proprietary technology to do business.

While the words “intellectual property” and “innovation” are not directly present in the announced IPEF goals, it is hard to see the framework’s emphasis on digital trade and supply chain integrity as separate from them. Previous research has found that in the digital era, supply chains are a major vector for IP risk, and therefore the IPEF’s digital and supply chain components will serve to strengthen IP protection indirectly.[2] As scholars have empirically found, “strengthening IPR protection promotes innovation and FDI in both the long and the short run.”[3] Indeed, the protection and enforcement of IPR are long-standing key components of U.S. trade policy, and Congress has made it clear that it views IP as an integral part of international trade.

The Role of the Courts in International IP and Trade-Related Issues

So what role do the courts play with respect to IP and trade issues, and how do judges learn about them? While some view judicial training or capacity building as little more than instruction and discussion about “judgecraft,”[4] there is significant evidence that such education helps build a strong and independent judiciary that will in turn support the rule of law and economic development.[5] In the view of the World Bank, “stable and efficient legal institutions that support property rights and the rule of law [are] the institutional foundation for foreign direct investment and a functioning market economy.”[6]

Despite a perceived general predisposition among judges to focus on their own jurisdictions, contemporary judges are part of an internationalizing world. As people, goods, ideas, art, pollution, violence, and investments flow across borders (either physically or electronically), courts around the world are key players in “judicial globalization.”[7] This is an “incremental process whereby judges cite the decisions of their foreign counterparts, engage in international dialogues, attend conferences, and generally show themselves to be highly attentive to developments beyond their own national borders.”[8] Justice Michael D. Kirby, formerly of the High Court of Australia and Court of Appeal of New South Wales, observes that there has been an “increase in dialogue between judges and other lawyers across national boundaries” in a discussion of both substantive law and the doctrines and procedures for conducting trials, appeals, and the work of the courts generally.[9]

Indeed, as Professor Toby Goldbach has noted, to a greater extent than ever before, “judges are traveling internationally to educate their peers and take part in sharing knowledge and experiences.”[10] Many, if not most, U.S. judges view this as a welcome and positive development and a “necessary response to the increasing globalization of the legal community as a whole.”[11]

In possibly no area of law has this increased involvement and participation been more observed than in judicial case management and decision-making involving IP disputes. The very nature of the technological implications in which many IP disputes arise, combined with the global reach of IP-reliant commercial enterprises and industries, has led to judges making themselves aware of the relevant decisions in foreign jurisdictions, seeking out opportunities to discuss developments in IP law with international colleagues, and engaging in discussion over innovative approaches to case management, judicial administration, and court procedure in matters involving IP.

Simply put, engaging with international judiciaries can advance U.S. objectives. Such engagement has long been recognized as a rationale when organizing educational exchanges, study visits, and other programs involving foreign government officials. It is something the USPTO has been doing for foreign judges since the mid-1980s, and that was greatly expanded in the late 1990s.

Additionally, one specific motivating factor for this increased focus on building capacity in foreign judiciaries around IP was the advent of the World Trade Organization (WTO) Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPS). For the first time in a global trade agreement, treaty, or convention, the TRIPS Agreement imposed obligations on a member state’s judiciary in the handling of IP matters. Many foreign judicial systems, however, were unprepared to take on the commitments and authorities to which trade negotiators had obligated them.[12]

In most countries, full compliance with the TRIPS Agreement meant that the laws, rules, and legislative framework had to be revised or amended to meet these newly imposed obligations on the courts. In other cases, it meant that courts had to confront how they handled IP disputes and criminal matters following legislative changes to IP laws, civil and criminal procedure rules, and the enforcement of border measures. With an increased national focus on complying with TRIPS obligations came a stated need for exchange, instruction, and sharing of experiences with more developed economies and legal regimes that had more experience in handling IP matters.[13]

In response to this newly perceived need, the USPTO led the U.S. government’s efforts on IP enforcement technical assistance, training, and capacity building, including engaging with foreign courts and judicial academies around the world. The expansion of the USPTO Visiting Scholars Program in 1996 to include foreign judges, the launching of the USPTO Enforcement Academy in 1997, and the formal establishment of the USPTO Global Intellectual Property Academy in 2005 were all efforts undertaken, at least in part, to assist developing member economies, including the judicial branch of their government, with meeting their TRIPS obligations.

An early example of the type of program developed by the USPTO for Indo-Pacific judiciaries was a week-long program organized in 2003 for members of the judiciaries of the member states of the Association of South East Asian Nations (ASEAN). The program exposed ASEAN states to both the substantive law of IP and the practices of U.S. courts in handling such disputes.[14] The involvement of U.S. judges, most notably those of the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Federal Claims, was viewed as crucial to the program’s success. Subsequent USPTO programs were designed and carried out for the judiciaries in Africa, Asia, Latin America and the Caribbean, Middle East, Eastern Europe, and the countries of the former Soviet Union.

This commitment to judicial education as a means to strengthen partner countries’ IP regimes underpins the rationale for the recent Indo-Pacific Judicial Colloquium to discuss the issues raised by an ever-expanding global online marketplace and digital economy. It continues the United States’ history of conducting educational activities to promote the protection and enforcement of IPR, support creativity and innovation, and share information.

While cutting-edge IP assets, groundbreaking innovations, and fast-evolving technologies are transforming lives and reordering global markets at breakneck speed, the deliberative executive and legislative processes that create the rules and norms to govern these changes are advancing at a statelier, or even glacial, pace. As a practical matter, this means that IP-related questions are increasingly resolved in courts around the world, with judges adjudicating conflicts and establishing important precedents that can affect both domestic and international market participants.

Conclusion

There is widespread agreement that the IP and trade issues discussed in this commentary are continuing to increase in importance, and this trend will only accelerate in the years to come. At the colloquium, Senior Judge David G. Campbell, chair of the International Judicial Relations Committee of the U.S. Judicial Conference, noted “the key role courts play in fostering the protection, enforcement, and innovation of intellectual property—an issue of growing importance in economies around the world.” Those were not isolated, nor solely American, sentiments. In discussing the impact of global change on their courts and legal systems, Supreme Court justices from India, Singapore, and Vietnam also observed that the courts are not immune from global economic commitments, rapidly developing new technologies, or the need to be aware, and more importantly engaged, in tackling the issues that create and underpin an innovative and creativity-based economy.

This consensus among U.S. judges and their Indo-Pacific counterparts reflects the unique opportunity that deeper judicial engagement can present. Judge James E. Baker, the Director of the Syracuse University Institute for Security Policy and Law, highlighted that artificial intelligence is an emerging topic on which deeper cooperation will be particularly necessary. As Judge Robert M. Dow Jr., counselor to the Chief Justice of the United States, observed, “judges make decisions that have consequences,” and the judiciaries of the Indo-Pacific are in a position to make decisions that will have global impact.

To advance a vision for the economic architecture that will govern the region, as the Biden administration hopes to do through the IPEF and other initiatives, the United States cannot neglect the importance of strong IP protections—protections that ultimately rely on enforcement by judges. A continued commitment to engagement with Indo-Pacific judiciaries—a process that builds on a framework established decades ago following the implementation of the TRIPS Agreement and aligns with a broader trend toward greater internationalization of judiciaries globally—is critical to the achievement of U.S. priorities for IP protection.

Peter N. Fowler is a Senior Counsel in the Office of Policy and International Affairs at the U.S. Patent and Trademark Office (USPTO) in the U.S. Department of Commerce. Having covered the region since 1995, he served as the USPTO regional intellectual property attaché for Southeast Asia, was posted at the U.S. embassy in Bangkok from 2011 to 2017, and served as an adviser to the Office of the U.S. Trade Representative on trade agreement negotiations in the region, including those with Malaysia, Singapore, Thailand, and Vietnam and the Trans-Pacific Partnership Agreement.

The views expressed are solely those of the author and do not represent the official position of the USPTO, the U.S. Department of Commerce, or the U.S. government.

Endnotes

[1] “Remarks by President Biden at Indo-Pacific Economic Framework for Prosperity Launch Event,” White House, May 23, 2022, https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/05/23/remarks-by-president-biden-at-indo-pacific-economic-framework-for-prosperity-launch-event.

[2] Steven Carnovale, “Guardians of Intellectual Property in the 21st Century: The Global Supply Chain Industry,” National Bureau of Asian Research, NBR Special Report, no. 95, December 2021, https://www.nbr.org/publication/guardians-of-intellectual-property-in-the-21st-century-the-global-supply-chain-industry.

[3] Hitoshi Tanaka and Tatsuro Iwaisako, “Intellectual Property Rights and Foreign Direct Investment: A Welfare Analysis,” European Economic Review 67 (2014): 107–24.

[4] Toby S. Goldbach, “From the Court to the Classroom: Judges’ Work in International Judicial Education,” Cornell International Law Journal 49, no. 3 (2016): 617, 621.

[5] See Juan Carlos Botero et al., “Judicial Reform,” World Bank Research Observer 18, no. 1 (2003): 61, 61–62.

[6] Cited in Goldbach, “From the Court to the Classroom.”

[7] Cited in M. Margaret McKeown, “Challenges and New Frontiers: National Courts as the Frontline of International Law,” American University International Law Review 32, no. 3 (2017): 763, 774.

[8] “The Changing Role of Highest Courts in an Internationalizing World,” Hague Institute for the Internationalisation of Law, 2008, 1, 2–4.

[9] Michael Kirby, “Transnational Judicial Dialogue, Internationalisation of Law, and Australian Judges,” Melbourne Journal of International Law 9 (2008): 171.

[10] Goldbach, “From the Court to the Classroom,” 624.

[11] J. Clifford Wallace, “Globalization of Judicial Education,” Yale Journal of International Law 28 (2003): 355, 358. Others are more skeptical, raising concerns about judicial participation in international capacity-building efforts by the U.S. government as a violation of the separation of powers, inappropriate government funding, and compliance with judicial ethical obligations. See, for example, D. Brooks Smith, “Promoting the Rule of Law and Respecting the Separation of Powers: The Legitimate Role of the American Judiciary Abroad,” Ave Maria Law Review 7, no. 1 (2008): 1, 4.

[12] Peter K. Yu, “TRIPS and Its Achilles’ Heel,” Journal of Intellectual Property Law 18, no. 2 (2011): 479, 484–92; and Carolyn Deere, The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries (Oxford: Oxford University Press, 2009), 72.

[13] Indeed, the TRIPS Agreement itself obligated developed members of the WTO to provide technical assistance and training to developing and least developed member states in all aspects of implementing the agreement.

[14] The “USPTO/WIPO Asia Pacific Program for the Judiciary on Intellectual Property Rights Enforcement” was held in Alexandria, Virginia, on July 14–18, 2003, and attended by judges from Bangladesh, India, Indonesia, Mongolia, Nepal, Pakistan, Philippines, Sri Lanka, Thailand, and Vietnam.