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On the Intellectual Property Rights Court: “For the year 2014 we have really serious tasks.”
Chairman of the Intellectual Property Rights Court
1. At the Guest Conference under the auspices of SPILF on March 6, 2013, in the Hague, you gave a paper on the Intellectual Property Rights Court. How was this information perceived by the colleagues from the Netherlands? What useful data did you acquire in the course of the dialogue with Dutch experts?
The paper on the establishment of the Intellectual Property Rights Court in Russia and its main tasks was acclaimed really enthusiastically. Both during the presentation and on the margins of the Conference the participants appreciated much this decision and its role in increasing the intellectual rights protection level and developing the unified judicial practice in conformity with the world trends. Many foreign participants, including representatives of the Dutch financial and industrial sectors, said they would be keeping watch over the Court as its work is of high importance for investors.
It is worth noting that the paper on the Court was given at the session addressing the development of mediation. The vast experience of our foreign colleagues, including specialists from the Netherlands, in extrajudicial and pretrial procedures is absolutely priceless for us. They use proven methods and can give some tips on how to do this. Currently, the Intellectual Property Rights Court organizes mediation services using, among other things, information received at the Conference.
2. Can you, please, tell us more about the progress the Intellectual Property Rights Court has made in 2013. What goals were accomplished? What crucial events will take place in 2014?
First and foremost, I would like to stress that the Court started functioning on July 3, 2013. It means that by this moment its work was enabled by both organizational and technical arrangements, 16 judges appointed and court system shaped.
In the past 6 months we got 454 claims which the Court should have addressed as court of the first instance, and 557 cassation appeals.
The cases the Court addressed as court of the first instance concerned mostly previous cessation of trademarks in consequence of their non-use. Less often (45% of the cases) we did consider contestations of Rospatent’s acts connected with grant or default in providing legal protection to intellectual property items, to wit inventions, industrial designs, utility models, trademarks.
Under cassational procedure we reconsidered cases related to liabilities for violation of exclusive rights, particularly recovery of compensation for exclusive rights violation. Disputes between brand and domain owners were also frequent as well as disputes related to violation of authors’ and inventors’ rights on the Internet.
The Court Presidium also started working, and its main task is to revise judicial decisions under cassational procedure. One of the first documents approved by the Presidium was dedicated to peculiarities of taking injunctive reliefs in domain disputes.
Last December the first meeting of the Research Advisory Board took place where issues of inequitable conduct, including competition, in acquiring and using means of individualization of legal entities, goods, services (like trademarks and service marks) were discussed. Now we are preparing the meeting of the Board dedicated to the issues of prior use. Among the Board members there are not only Russian but also foreign experts what allows taking account of foreign experiences as well.
Appreciating the necessity of close and constant interaction with leading academic and educational institutions of our country, the Court made a number of cooperation agreements not only with law schools but also with technical and scientific institutes.
We also try to engage foreign experts in our activities and build contacts with specialized courts in other states.
Last year the Court hosted Francis Gurry, Director-General of the World Intellectual Property Organization, who was really inspired by our experience and suggested using information sources of this distinguished organization to bring information on the Court and its practice to the notice of all the member states of international intellectual property protection conventions. In the first issue of the WIPO Magazine 2014 there will be an article on the Intellectual Property Rights Court which is a completely new institution in the Russian Federation.
We did also create a magazine of the Intellectual Property Rights Court. With due regard to peculiarities of the modern information space, we decided to register it as an electronic media. Our magazine functions as a website, available without any formalities from any part of the world: http://ipcmagazine.ru.
For the year 2014 we have really serious tasks. We do plan to complete recruiting external consultants who could advise on issues requiring special skills and knowledge. In December we will address organizational and legal issues concerning staff recruitment together with international experts, representatives of legislative and executive agencies.
In the near future the Court will open a special “conciliation room” where mediation and conciliation procedures will take place in the court building.
We also plan to resume judicial practice and prepare some recommendations on resolution of domain disputes, disputes on previous cessation of trademarks’ legal protection because of their non-use, on application of compensation and many others. We shall also do a lot because of the modernization of the fourth part of the Civil Code, first of all, to correct recommendations provided earlier by Plenary assemblies of the Supreme Court and the Supreme Commercial Court of the Russian Federation.
Last April our Court held a conference on organization of justice in the area of intellectual rights protection that addressed the global tendency to create judicial bodies specializing on legal protection to intellectual property items.
This April during the intellectual property week held by the Chamber of Commerce and Industry of the Russian Federation under the auspices of the WIPO, the Court organizes the conference on issues of granting and cessation of legal protection to trademarks and services marks. We invited the most distinguished Russian lawyers as well as experts on intellectual property rights protection from the USA, Switzerland, Japan, judges from the Federal Patent Court from Germany and other colleagues from the other states to become speakers at the event.
A lot is to be done to tool up the Court, to provide parties with an opportunity to familiarize with cases and materials and take part in court sessions with the help of modern technical facilities. And I can’t help sharing with you my apprehensions in respect of probable difficulties with organization which are unavoidable during such a serious judicial system reform.
3. The Intellectual Property Rights Court is a new progressive element in the Russian judicial system. How can foreign experience help at building and further enhancement of the Court’s work?
You have probably heard a joke about the notice on the door of the doctor's office “Dear patients! Waiting for your turn, please do not discuss your symptoms with each other; this makes diagnosing very difficult!”
But speaking seriously, starting an important project it is very useful to focus on experiences of those who have already met similar situations and can help to avoid significant faults.
Surely, it is safe to say that in spite of our deep intellectual potential and scientific heritage, the experience of legal and judicial protection of intellectual property items our foreign colleagues have is far more sustained. We have a lot to learn from them.
Moreover, appropriate legal regulation and providing of intellectual property protection result from the range of international obligations of the Russian Federation. After Russia entered the WTO it assumed obligations related to fulfillment of the demands arising from Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and other international acts.
Of course, over the last few years Russia made considerable efforts to enhance legislation and bring it in line with aforementioned requirements. I have already noted how numerous changes are and how many changes are still expected in the fourth part of the Civil Code of the Russian Federation.
The foreign experience can be valuable not only for legislators but for us at defining practice as well. You said correctly that our Court is a new element in the Russian judicial system, not the first in the world, though. That’s why we do hope it will be easier in our case. The Federal Patent Court in Germany has been already functioning for more than 50 years, in Japan – since 2005; the practice of the UK and the USA could be also helpful. And I’m sure that our experience, in turn, will be in great demand as we also go ahead with some projects.
In the legal workplace, recognizing emotional intelligence skills could well impact not only the satisfaction and retention of lawyers, but also significantly improve their analytical and decision-making abilities.
Emotional Intelligence for Lawyers
By Ronda Muir, ESQ.
“(M)en decide far more problems by hate, or love, or lust, or rage, or sorrow, or joy, or hope, or fear, or illusion, or some other inward emotion, than by reality or authority or any legal standard, or judicial precedent, or statute.”
Everyone is familiar with "IQ"—intelligence quotient. Most lawyers put their IQ scores up there with their SAT and LSAT scores as generally acknowledged evidence of their competence. But what is your emotional intelligence quotient? And why should you care?
In spite of lawyers' confidence, some might even say arrogance, as to their intellectual competence, for the most part they have a demonstrated unwillingness or inability to tap into emotional data. In recent years, the field of neuroscience has produced astonishing evidence that is finally putting to rest the long-standing controversy over the role of emotions in the workplace: research has established that rational decision-making is impaired if the area of the brain relating to emotions is damaged or excised. It has now been scientifically demonstrated that the best analyses and decisions are made when we engage the emotions, as well as the intellect. For lawyers, the message is clearly that, in order to upgrade their performance, they should use the additional data available from their own and others’ emotions to enhance their cognitive skills.
A Short History
The function of “emotion” has long been a subject of controversy. As noted in the quote above, Cicero of ancient Greece recognized the power of emotions in decision-making years before the birth of Christ. On the other hand the Stoic philosophers of roughly the same era viewed emotion as too individual and self-absorbed to provide reliable insight, even undermining rational thought. By the late 18th and early 19th centuries, the Romantic Movement was promoting the notion that emotions, intuition and empathy could provide valuable insights unavailable through rational thought alone.
Throwing aside America's legacy of Puritan distrust of and suppression of emotion, the human potential movement of the '60s advocated "letting it all hang out," emotions-wise, and maintained that there was "no right way to feel." Darwin, on the other hand, had taken the position that there may in fact be a "right way to feel" for some purposes, since accurately perceiving and understanding emotions could provide evolutionary advantages. That view seems to be supported by the consistency across cultures that contemporary psychologist Eckman has documented in how people read the emotional content behind different facial expressions, for example.
Still, after centuries of back and forth over the role and importance of emotion, in 1960, a psychologist named Cronbach concluded that what he called "social intelligence," while clearly of some value, was unlikely to ever be defined and had never been measured.
The current notion of emotional intelligence (EI) refers to the ability to process emotion- laden information competently and to use it to guide cognitive activities like problem- solving. Emotions, according to this construction, bridge thought, feeling, and action – significantly affecting many aspects of the person, as well as being affected themselves by the person.
The field of emotional intelligence is an outgrowth of two areas of psychological research that merged toward the end of the last century. In the 1980s psychologists began to examine how emotions interact with thought and vice versa. For instance, researchers determined how mood states can influence perception, thought and judgment: a slightly depressed mood can facilitate accurate close, repetitive work, such as clock making; an upbeat mood can facilitate the generation of creative ideas. During this same time, there was a gradual broadening of the concept of intelligence to include an array of abilities. Howard Gardner, for example, advocated for the recognition of multiple intelligences, including interpersonal intelligence, primarily for purposes of teaching children with diverse learning styles.
In 1990 Yale researchers John D. (Jack) Mayer and Peter Salovey published in academic articles the first formal definition and experimental measurement of "emotional intelligence.” The startling conclusion of their research was that it was the use of both emotion and cognition combined that resulted in the most sophisticated information processing and decision-making.
Daniel Goleman popularized this concept of emotional intelligence in his 1995 trade book Emotional Intelligence: Why it Can Matter More than IQ, and further expanded the concept of emotional intelligence to include a broad array of personality attributes, such as political awareness, self-confidence, conscientiousness and drive. When in 1998 the Harvard Business Review published an article on the topic, it attracted a higher percentage of readers than any other article published in that periodical in the prior 40 years. The CEO of Johnson & Johnson had copies of the article sent out to the 400 top executives in the company worldwide. In the years since, increasing numbers of both popular and scholarly articles on emotional intelligence have appeared, and the topic has received wide media coverage.
Assessments to measure different components of emotional intelligence have also proliferated. While the most widely used scales of analytic intelligence, the Wechsler Intelligence Scales, have been in use and analyzed for almost 100 years, measurements of EI have only been used for the last five years. Many of these assessments are “self-report” or reported inventories, meaning that the test-taker or those who know the test-taker simply state whether or not he/she possesses particular traits, such as optimism, self-awareness and initiative. For example, on the Bar-On Emotional Quotient Inventory, the test-taker reports whether they have certain attributes pertaining to inter-personal skills, stress management and adaptability. The Emotional Competence Inventory, based on Mr. Goleman's precepts, measures initiative and organizational awareness, among other variables, using composite ratings by all the people in a particular individual’s social environment.
The Yale researchers, Mayer and Salovey, confined their model of EI to only those traits they could measure in the process of subjects performing tasks in real time, rather than by simple reporting. In other words, they did not rely on asking participants their opinion of their or others' skills. This model has produced the only "abilities-based" assessment, the Mayer-Salovey-Caruso Emotional Intelligence Test (MSCEIT).
So What Exactly is Emotional Intelligence?
As a general matter, emotional intelligence refers to "the abilities involved in the recognition, use, understanding and management of one’s own and others’ emotional states to solve problems and regulate behavior," a definition taken from Mayer and Salovey. This model identifies four branches of EI that each reflects a different set of skills.
The first branch is Identifying Emotions, and includes the skills of identifying one's own and others' feelings, expressing emotions accurately and differentiating between real and phony emotional expressions. The second branch is Using Emotions, which includes the ability to access one's own emotions and to switch emotional gears, using changes in mood to see multiple points of view and to attempt different approaches to problem solving (for instance, using a happy mood to assist in generating new ideas).
The third branch is Understanding Emotions, including the ability to understand emotional "chains" — how emotions transition from one state to another, to recognize the causes of emotions, and to understand relationships among and complexity within emotions. The fourth branch is Managing Emotions, which includes the ability to stay aware of changing emotions, even those that are unpleasant, the ability to confront and solve emotion-laden problems without suppressing emotions, and the ability to manage relationships.
What Emotional Intelligence is Not
Emotional intelligence does not correlate with IQ. Just because you're smart doesn't mean you're likely to have a high EI. Some professionals, such as lawyers, exhibit high average IQ scores (in the 115-130 range), while at the same time scoring lower than the general population on EI (85-95).
Nor does emotional intelligence correlate with any particular type of personality. Historically, the research that exists on predicting workplace success has examined personality attributes, and those results do not point to any one attribute having a major impact on success. In one significant study of five personality dimensions, "conscientiousness," including competence, order, dutifulness, achievement striving, self-discipline and deliberation, was found to be the best personality factor predicting workplace success, consistently across all occupational groups, but accounted for only 2-3% of the variance.
Similarly, being emotionally intelligent, at least for purposes of improving job performance, does not necessarily mean being "nice." In the study cited above, "agreeableness," a combination of trust, straightforwardness, altruism, compliance, modesty and tender mindedness, was determined not to be an important predictor of job performance, even in those jobs containing a large social component, such as sales or management.
Nor is "liking people" a critical part of emotional intelligence. In the same personality study, being high in extraversion, which included warmth, gregariousness, assertiveness, activity, excitement-seeking and positivism, validly predicted success for people in management and sales (although only to the extent of 1-2%), but not for professionals such as lawyers, accountants and teachers or for skilled or semi-skilled occupations.
What is Emotional Intelligence Good For?
While not a magic formula, emotional intelligence appears to identify a previously overlooked area of ability that is critical to maximize certain human functioning and that can positively impact work performance. Claims have been made that emotional intelligence accounts for 80% of an individual's workplace success, although there is as yet little hard data to justify that percentage.
Nonetheless, a number of studies have pointed to the importance of emotional intelligence in the workplace. For example, an insurance company rated 26 customer claim leaders and their teams as to their effectiveness. Those ratings turned out to be highly correlated with the level of emotional intelligence of the leaders and with the average team emotional intelligence, both as determined by an EI assessment.
A significant American Management Association study found that the ability to "get along with people" was "more vital than intelligence, decisiveness, knowledge, or job skills" in producing good managers.
In addition, as detailed below, training in emotional intelligence has proven to produce significant bottom-line results.
There is also significant research data that leaders are more productive and effective if they are able to identify, use, understand and manage emotions. Higher manager self- awareness, a critical component of emotional intelligence, leads to higher management performance. Empathic skills assist in understanding multiple viewpoints and motivating others. Both a positive managerial mood and the ability of the manager to enhance positive mood in others has been found to increase employee performance, improve retention and reduce group conflict.
Women score somewhat higher on measures of emotional intelligence than do men, but not significantly so. However, since emotional intelligence is often not recognized as a critical leadership skill, women and others who possess higher emotional intelligence may be unrecognized and undervalued in the workplace.
Perhaps more telling, men consistently score higher on suppression of emotions, which research clearly shows reduces cognitive functioning. The high suppression rates may be due to what we know about gender differences in “felt emotion.” Emotional experience as a general matter for men seems to be more physically debilitating— producing a higher pulse, rate of perspiration and blood pressure — and to last longer over time than the same experience does for women, and men may therefore tend to suppress those feelings more.
What About Lawyers?
As noted earlier, lawyers score lower than the general public in EI. There are a number of reasons why that may be true. The legal workplace has historically taken the Stoic/Puritan view that emotions are best eliminated from legal analysis, and thus emotional intelligence is probably at least undervalued if not discouraged. In addition, strong analytic skills may give individual lawyers enough success to convince them that they do not need to develop their EI skills.
However, the impact of low emotional intelligence in the legal arena is evident.
In April 1955 Dean of Harvard Law School Erwin Griswold noted that "Many lawyers never do seem to understand that they are dealing with people and not solely with the impersonal law,” a comment that unfortunately continues to ring true today. The reputation of lawyers generally has suffered from the image of lacking interpersonal sensibilities, such as compassion. Further, the high rates of divorce, suicide, addictions and plain dissatisfaction among lawyers is evidence of less than satisfactory emotional balance across the profession.
Can You Learn It?
Emotional intelligence is increasingly being incorporated into professional training programs across the country. At the Weatherhead MBA Program at Case Western Reserve University, training in social and emotional competency is part of the curriculum for future business leaders. Communication and emotion-related skills are being included in physician training at a number of medical schools.
The Breakthrough Leadership program adapted a design used successfully in degree programs at The Weatherhead School of Management. The central theme focuses on helping managers identify areas for behavior change, then giving them opportunities to practice new habits real-time. In the degree programs, the results have been extraordinary. Participants have shown a 70% improvement in emotional intelligence competencies one to two years after the program. The changes are sustained at 50% improvement five to seven years later. These dramatic results are in contrast with the typical impact shown by above-average MBA programs of 2% improvement one to two years after a program, and the typical impact of management training showing only 10% improvement three to eighteen months after training in industry.
Perhaps the workplace training program that addresses itself most explicitly to emotions is the Emotional Competency Training Program at American Express Financial Advisors. The goal of the program is to assist managers in becoming "emotional coaches" for their employees. The training focuses on gaining an awareness of how one's own emotional reactions and the emotions of others affect management practices. A much higher growth rate in terms of funds under management was found for the managers who had taken the training.
What about Law Students?
In 1955, Dean Griswold called upon the bar and the legal academy to recognize the need for "human relations training" in law school, noting that the average lawyer spent far more time interacting with people than reading and arguing cases. It was Griswold's opinion that training could help lawyers better understand their own emotional needs and that of their clients.
One of the first law school courses in the nation to apply human relations training to law was taught by Professor Howard Sacks at Northwestern Law School during the 1957 58 school year. The course, entitled "Professional Relations," was offered without credit and was taught (in four classes lasting two hours each) over the span of two weeks. Professor Sacks expressed the hope that other law teachers would join in his experiment, both in offering stand-alone courses such as "Professional Relations" and in integrating human relations training into the regular law curriculum.
Of course, the legal profession is rarely accused of implementing change too quickly, and a law review article written by Harvard Law Professor Alan Stone in 1971 noted that, in spite of Dean Griswold's advocacy for human relations training, "law schools... have largely ignored the responsibility of teaching interviewing, counseling, negotiating, and other human relations skills."
The last three decades have been witness to a marked increase in the number and variety of law school courses that touch on components of emotional intelligence. Nevertheless, legal academics still take the position that lawyers must learn to be more effective interpersonally. As Vanderbilt University Law Professor Chris Guthrie summarizes it, "Lawyers are analytically oriented, [and] emotionally and interpersonally underdeveloped."
In conclusion, emotions and emotional management clearly effect how people feel and act at work. In the legal workplace, recognizing emotional intelligence skills and providing training to raise generally low emotional intelligence scores could well impact not only the satisfaction and retention of lawyers, but also significantly improve their analytical and decision-making abilities. Further, the ability to identify through abilities- based assessments those partners and associates who are best able to deal with their own and others' emotions should prove useful to improving law firm and law department management.
Ronda Muir, Esq., founder and Principal of Law People Management, Inc., is a leading authority on the application of behavioral science to the legal workplace. She draws from law, psychology and conflict resolution to offer business-savvy, psychologically sophisticated evaluations of, and real-world solutions to, the personal dynamics issues that are unique to law firms and law departments. Reach her at RMuir@LawPeopleManagement.com.
© Ronda Muir, ESQ. All rights reserved.
It is not a secret that the Olympic Games connect people of not only different nationalities but different professions as well. And lawyers are not an exception.
It is not a secret that the Olympic Games connect people of not only different nationalities but different professions as well. And lawyers are not an exception. Surprisingly, sportsmen lawyers made a considerable contribution to the development of the Olympic Movement and showed brilliant results in different sports.
The bright example of a beneficial impact of legal education on competitive career is victories of Otto Herschmann. He won two silver medals in such differing sports as the men's 100-metre freestyle event and the men's team sabre event in fencing. Moreover, in 1912 he was elected a President of the Austrian Olympic Committee and was regarded as one of the most influential sportsmen in Europe1. Then, in the 1940s, Herschmann was in private practice as a lawyer.
The biography of another lawyer, Edward Patrick Francis Eagan, aka "Eddie", is also notable as he was the only person to win a gold medal at both the Summer and Winter Olympic Games in different events. In 1920, Eagan competed as a boxer at the Summer Olympics, and won the gold medal in the light-heavyweight division and at the 1932 Winter Olympics in Lake Placid he won gold in four-man bobsleigh2.
No wonder that among the Olympic lawyers is Thomas Bach, current President of the International Olympic Committee and member of the DOSB executive board. He studied law and politics in the University of Würzburg and became LLD in 1983. However, apart from his academic career, Thomas Bach achieved great success in fencing. Bach competed at the 1976 Summer Olympics and won a gold medal in the team foil even3. A perfect marriage of talent in sport and professional skills allowed him to become the President of the Deutscher Olympischer Sportbund (DOSB) and then, since September 2013, President of the International Olympic Committee.
History proves that Fortune has many surprises for all of us. Sometimes, on the contrary, Olympic champions become lawyers what can be illustrated with an example of medalists of the Winter Olympic Games in London Tom Solesbury and Sophie Hosking4, who stopped their career in sport and continued legal practice. However, as it was shown above, the opposite is also true. So, it may happen that it is you who will win a gold medal at the next Olympics.
1. Information portal “Celebrities – bios, interviews, stories” - peoples.ru
2. Official website of the Olympic Movement - olympic.org
3. Information portal “Who’s Who” - whoswho.de
4. News portal - thelawyer.com
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In the next issues you will also find a few interviews with moderators of the IV St. Petersburg International Legal Forum addressing the most important topics of round table discussions in 2014.
In the sixth issue of the Digest on March 12 we will present you the interview with Marina Gassiy, Judicial Support Director of SUE “Vodokanal of St. Petersburg”, Honoured lawyer of the Russian Federation, dedicated to the roundtable organized on behalf of the of SUE “Vodokanal of St. Petersburg” at the IV Forum.
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