Data scarcity

Data scarcity is not the first feature that comes to mind when one thinks about our present time.

Plethora, excess and overplus are probably more accurate descriptors.

But French patent law may be (once again) an exception, as there has been for a number of months a real shortage of online accessible judgments.

Like most court decisions in this country, patent law rulings are in theory public documents. But, nowadays, can a document be considered as truly made available to the public if it is not available online, and if you have to place an official written or in-person request with the court’s clerks in order to hopefully get a copy?

In recent years, access to patent law decisions has made huge progress, in particular thanks to the online case law database hosted by the French patent office (INPI). But the database is not up-to-date and has not been for months now.

As far as I understand, the problem was caused by a new general policy of the justice administration, reflected in a memo dated December 2018.

The memo acknowledges that most judgments must be made available to the public, and that copies thereof can be individually communicated, upon request.

But then the memo adds that a massive communication of decisions “should be in principle avoided“. It provides the courts with a number of reasons why they can / should refuse such requests:

  • Such requests can place an undue burden on the (notoriously understaffed and underfunded, I should add) departments in charge.
  • Massive communication can breach principles of data protection.
  • In particular, decisions should not be communicated before being redacted to remove personal information.

I understand that this policy aims at thwarting legaltech companies (as well as more conventional editors?) eager to siphon off all of the justice administration data to process it (and make a profit out of it). And there may be good reasons for this. But the policy apparently had the side effect of also freezing access to legal information on the website of the INPI – a public institution.

A number of appeal and cassation appeal rulings are still published more or less regularly on the INPI website – although there is no way to know if this publication is exhaustive or not.

On the other hand, there are almost no more recent first instance decisions on the database (I can see only two first instance patent-related rulings issued in 2019 as I am writing this post). And the current general justice administration website (Legifrance) has zero – it has always been little useful in the field of patent law. This leaves us with subscription-based websites – but they are subscription-based; and I have heard that their collections may also be incomplete.

I assume that the administration’s plan is to set up its own new platform giving access to all decisions, including first instance ones.

Consider article L.111-13 of the Code de l’organisation judiciaire. When it was introduced in 2016, the initial wording of its first paragraph was:

Without prejudice to particular provisions on access to justice decisions and their publicity, judgments issued by judicial courts are made available to the public for free, making sure that privacy of those concerned is not impinged on. 

In March 2019, this paragraph was amended as follows, and another one was inserted:

Subject to specific provisions on access to justice decisions and their publicity, judgments issued by judicial courts are made available to the public for free in electronic form

Family names and first names of the individuals mentioned in the judgment, when they are parties or third parties, are redacted prior to release. Any element making it possible to identify parties, third parties, judges and court clerks is also redacted when its disclosure may impinge on the safety or privacy of these persons or their relatives. 

As you can see, things have gotten more specific: all decisions should fortunately be available online, not just communicable upon manual request. But they have to be carefully redacted first – including possibly by deleting the judges’ names. Could it be that this constraint is what is making everything more complex?

Do not expect to find this type of functionality in the future government case law database.

Another paragraph in the same article adds that the specifics of these provisions will be set by way of executive order. As far as I understand, no such executive order has been issued yet – so that the above provisions are not yet applicable. 

Interestingly, the December 2018 memo mentions the following:

The fact that article L. 111-13 […] on open data of court decisions is not applicable in the absence of an executive order to this end cannot be bypassed by way of a massive communication process which would not provide useful guarantees for the protection of personal data. 

In other terms, until the administration’s intended complete open database materializes, there will be no similar database elsewhere.

If any reader is privy to information on the timing of completion and release of the future database, I would be happy to know. Otherwise, let’s hope that the INPI will soon be able to resume a timely publication of all patent-related rulings.

As shown above, redaction of personal information in judicial decisions seems to be a primary concern of the administration. In this respect, another interesting paragraph was introduced into article L. 111-13 in March 2019:

Identification data of judges and court clerks cannot be reused so as to assess, analyze, compare or predict their real or assumed professional practice. A breach of this prohibition is punished according to articles 226-18, 226-24 and 226-31 of the Code pénal, without prejudice of measures and sanctions provided in Law No. 78-17 of January 6, 1978 relating to computer sciences, data and liberties. 

By way of information, article 226-18 Code pénal sets maximum penalties of a five-year imprisonment and a EUR. 300,000 fine. The other two articles add complementary sanctions for legal entities and individuals, respectively.

How very French to try to make us forget that judges are individuals having their own specific views – and what a contrast with what they do in the U.K. or the U.S.

On the one hand, I can see why data analysis targeting specific magistrates can be a problem. What if, knowing that Mr. X or Mrs. Y usually rules in this or that manner, parties are able to go forum-shopping by choosing the judge they like best. My understanding is that this is not possible for cases on the merits, but is possible for ex parte petitions, such as infringement seizure petitions, as different judges of the third chamber of the Paris Tribunal de grande instance (TGI) are on duty on different days of the week. And I am talking only about IP here, I am sure there are more serious potential concerns in other areas of the law.

On the other hand, if there are indeed differences of practice between judges, and I am still talking only from an IP law perspective, is this not information the public should be entitled to have?

One of the major issues of patent law, in my view, is unpredictability for all stakeholders. When a company asks whether a patent is valid or not, whether it is infringed or not, or what to do in order not to infringe, those are usually tremendously complex questions.

They make our lives as patent attorneys interesting, I will grant you that. But, on the economic standpoint, not being able to have any certainty on issues of validity and infringement is a problem. It also paves the way for various sorts of abuse. Think about the infringer willing to take a chance with a patent that its owner will not be certain to be able to successfully assert. And think about the patentee knowingly wielding its invalid title as a sword of Damocles.

Therefore, isn’t all information allowing stakeholders to reduce the level of uncertainty as much as possible legitimately useful?

Last week’s post on the different insufficiency doctrines used by Board 3.2.05 and Board 3.2.06 of the EPO offers a nice example. Isn’t this discrepancy important to know as a patentee, opponent or third party involved in the diaper industry or any other relevant technical field?

Even though the judges of the TGI work together in order to harmonize their judgments as explained in this post, they may still have different approaches. Even more importantly, the appointment of new judges to the IP chamber may also bring about significant changes.

By restricting (heck, by outlawing) any judge-based data analysis, stakeholders will be left in the dark.

In fact, this may even foster inequality between patent professionals, and between patent stakeholders. There will always be lawyers in the know, because they regularly handle many cases in front of the same judges and may even occasionally have informal discussions with them – and all the others.

Now, I would like to bring these thoughts to a conclusion, on a more self-centered point of view.

Obviously, this blog cannot properly report on French case law without any court decisions.

I do have a couple of sources, and appeal rulings seem to still be forthcoming. But first instance decisions are also essential to review; because many cases don’t give rise to an appeal ruling, and because first instance judgments tend to be more thorough and thus more interesting to analyze.

So I would be most grateful if readers could pass on what they have, so that it can be shared here.

I am happy to cite my informants or to keep them anonymous. And if you supply a decision and would like my post to include a comment from you on the decision, I am also happy to oblige.

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