°Őłó±đĚý is intended to promote education in the intellectual property field and to provide students with the opportunity to interact with jurists of the Supreme, Ontario, and Federal Courts and experienced practitioners of intellectual property law. The moot is named in honour of the late , one of Canada’s leading intellectual property scholars and advocates.

This year's moot problem focused on the "patent bargain," and in particular, two hot topics in the world of patent litigation: sufficient disclosure under s.27(3) of the Patent Act and the patentability of diagnostic methods. In the problem’s hypothetical scenario, the Appellant had patented a process for diagnosing early stage chronic kidney disease through the isolation of a particular bacteria in saliva. The Respondent had admittedly infringed the Appellant’s patent; however, they had challenged the validity of that patent on the grounds that the Appellant's document contained insufficient disclosure and that the invention claimed was a mere scientific principle (the correlation between the bacteria and the disease). The Appellant was successful at trial; however, the patent was ultimately invalidated by the fictional Intellectual Property Court of Appeal. The moot was an appeal to the Supreme Court of Intellectual Property, the highest court in the land. This simple premise was greatly complicated by a number of carefully worded situational factors that allowed for compelling arguments to be made on behalf of either party.

(from left) Benjamin Farrow, Isabella Ssozi, Jeremy Fisher, Faye Alipour and Jason Hayward comprised the 2014 Harold G. Fox Moot team for Osgoode Hall Law School. Photo Credit: Alan Macek

Benjamin Farrow is a JD Candidate at Osgoode Hall Law School and a member of this year’s Harold G. Fox Moot team for Osgoode Hall Law School.

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“Reflections on the Supreme Court of Canada 2012 Copyright Decisions”

“Advocacy Skills and IP: Observations from the Bench”

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Please note: Justice Hughes' lecture was recorded and this article will be updated to provide a link to that recording once it is made available online.

, founder and Director of IP Osgoode provided the introduction.  She highlighted Justice Hughes' notable influence on intellectual property law and policy both before and after his appointment to the bench.  To conclude her introduction, Professor D'Agostino read an excerpt from the chapter that Justice Hughes contributed to : “Asking how litigation begins is rather like asking how persons fall in love.  The answer is that there are all sorts of ways, good, bad and indifferent”.

On that note, Justice Hughes proceeded to paint a colourful portrait of the process a judge goes through in arriving at a judgment from soup to nuts: everything from organizing a case pre-trial to sitting down in a quiet office to think and finally write the reasons for judgment.

The process begins in pre-trial, months before a case is to be heard.  At this stage a judge is responsible for organizing the case, identifying and reducing the number of contentious issues, and forging agreements on the facts wherever possible.

The organizational responsibilities of the judge continue with the trial.  Evidence, exhibits, issues, and witnesses all need organization.  Especially important is dealing with expert witnesses.  Justice Hughes is a pioneer in this area, using a practice that is known as "hot tubbing", which involves sitting opposing experts in the witness box together to encourage them to arrive on agreed opinions.  The judge must also hear the lawyers' oral arguments and read their associated facta.  Justice Hughes advised that an effective written submission should be no more than thirty pages.

Once a trial has concluded, the judge's real work begins: reducing the case to reasons for judgment and working to distill those reasons into a written document.  Essential to this is process is, as Justice Hughes puts it, considering the "ask": the remedies that are being sought by the parties.  To get to the "ask", one must first try to get all of the facts right by considering the evidence according to the appropriate burden where there is a dispute.  Most importantly the legal issues in the case must be carefully sorted out, and the applicable law must be clarified.  Finally, the law is applied and the remedies considered.  Justice Hughes declared that he prefers creative remedies that do the "least harm” while achieving an appropriate result.

Justice Hughes then led us through a typical case for each of patent, trade-mark, and copyright.  While going over the most common issues in each type of case, he placed special emphasis on the various legal standard personas that a judge must put himself in the position of to arrive at a conclusion.  When assessing a patent, the perspective is that of a person "skilled in the art"; for trade-marks, it is the "average consumer somewhat in a hurry"; for copyright, it is the somewhat more nebulous "beholder" of a work.

Having gone through the process of hearing a case, a judge then sits down in a quiet office to think about the case.  Justice Hughes intimated that a decision is written with the conclusion in mind and intended for several audiences: consumers, the parties, their lawyers, the public, and the appeals courts.

As promised, some tips for both new and experienced advocates were then offered based on Justice Hughes' thirty-seven years of experience as a lawyer and seven years on the bench. At the top of the list was to “keep it as simple as possible, but no more simple than possible”.  Justice Hughes advised that presenting your three best issues while being polite, pleasant, and “folksy” rather than mechanical, is more persuasive and likely to convince the judge to grant your "ask".  He also explained that knowing your case and organizing it logically is essential, as is “not sweating the small stuff”, which allows for an agreement in principle on as much as possible and helps narrow a case to its essential issue. Justice Hughes, tongue-in-cheek yet practical, also reminded us of  “Rule 13”: "don't piss off the judge".  Last but not least, he wisely advised us to be truthful to the client and respectful to both the opponent and the judge.

The lecture was followed by a lively question and answer period in which questions ranged from queries about the above-mentioned “hot tubbing” of experts to the challenges faced by teachers and students in fine arts programs when it comes to protecting their intellectual property rights. Finally, Justice Hughes offered some advice to law students and recent graduates looking for work in a crowded market: be enthusiastic to set yourself apart.

Philip Poles is a graduate of Osgoode Hall Law School.

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