Innovation

Intellectual Property Society of Australia and New Zealand

Sydney

I am honoured to be invited to speak this evening. Although I dabbled a little in intellectual property law at the Bar, I could hardly claim to have been a fully fledged member of the club. Fortunately, something of what I learnt as a Federal Court associate to Bill Gummow about 37 years ago seems to have been retained in the dark recesses of the hippocampus. Unfortunately, most of it retired long ago to the remote coastal fringe of the brain, beyond any current means of contact. But despite my healthy ignorance, I would like to think that I share with you a fascination for the subject-matter of innovation, and for a system of law which seeks to give the maximum incentive to human ingenuity.

We are currently experiencing one of those great surges in scientific and technological progress, similar in many ways to one that occurred about 150 years ago. I don’t often get the opportunity to talk about the late 19^th Century, so I hope you will allow me a slight digression. Next year is the start of a series of important 150^th patent anniversaries: Alexander Graham Bell’s telephone in 1876, Thomas Edison’s phonograph in 1878 and his electric light bulb in 1880, and Karl Benz’s automobile powered by an internal combustion engine in 1886. I am not going to try to explain why great inventions often arise in clusters. The question is all the more intriguing when one contemplates that many great breakthroughs were arrived at not through deliberate intent, but through chance and an open mind. It has been a pleasure to re-read patent judgments that remind us that problem-solving is rarely linear. The process often works backwards or laterally or through a combination of directions and mis-steps. Often the solution to a problem emerges by trying to solve a different one. One thinks of penicillin, microwave ovens and the humble post-it note. To quote one of Thomas Edison’s many one-liners: “Just because something doesn’t do what you planned it to do doesn’t mean it’s useless.”

Thomas Edison was the archetypal inventor. He used to the maximum the near complete freedom that the America of his day gave to a person of talent. He was unconstrained by rules and inhibitions, and showed how free enterprise always has something up its sleeve. By the end of his life, he had 1,098 US patents to his credit, and at the height of his career he was putting in a new application every 11 days. When he and Louis Tiffany collaborated in New York to create the world’s first electrically lit theatre, The Lyceum, it was the ideal combination of the artistic scientist and the scientific artist. The perfect client, you might think, except for the minor problem that Edison absolutely detested lawyers. If it makes you feel any better, he also hated financiers, and wrote on one of his patents: “Invented by & for myself and not for any small-brained capitalist.”

It has often been observed that all good ideas seem obvious in hindsight. But one of the greater oddities is that when seriously good ideas emerge, they are often not instantly welcomed. Tim Berness-Lee’s first proposal for the world wide web was returned with the note: “Vague, but interesting”. In 1895, Edison said in vain that the automobile was “the coming wonder”, but it took another 13 years for one of his proteges of single-minded determination from the Edison Company, Henry Ford, to realise that prediction. Ford became one of the richest men on earth, and also held the record in 1914 of paying the highest wages, not just in the industry but as at that date in history. He thereby ensured that he retained the best workers and also ensured that they could afford to buy the product. The idea might seem obvious to anyone but an economist, but it was certainly new. And when Henry Ford was asked whether he was inspired in inventing the mass manufacturing of automobiles by asking customers what they wanted, he replied that if he had asked customers what they wanted, they would have asked for a faster horse.

There is an extraordinary resistance to almost anything new. We tend to be creatures of habit and conformity. “Fortune favours the brave” can be a useful motto. So too is: fortune favours the open and well-prepared mind.

I was fortunate as a very young barrister to catch the tail-end of Justice Andrew Rogers’ judicial career. He was probably the most innovative judge Australia has ever had, and revolutionised the way in which commercial litigation was conducted. To take one example, Justice Rogers experimented with the use of conferences between expert witnesses, followed by them giving concurrent oral evidence, in which they were all in the witness box at the same time and encouraged to ask questions of, and debate issues with, each other, and in that way, as he put it, to better inform themselves and the Court (see Spika Trading Pty Ltd v Royal Insurance Australia Ltd (1985) 3 ANZ Ins Cas 60–663 at 79,111–79,112). That is now the conventional approach to expert testimony, and is almost invariably adopted. But that acceptance had to wait for a later generation of judges to be appointed whose overall approach had been shaped by Justice Rogers when they were at the Bar. The innovation was heavily criticised by the unanimous High Court in 1980 after it had been adopted by the Australian Broadcasting Tribunal, an often forgotten aspect of the much-cited Hardiman’s case (See R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35). The High Court said, surprisingly to modern ears, that the procedure was calculated to hamper the cross-examination and make it difficult to evaluate the worth of an individual witness, and that its main purpose was to inhibit exploration of credit. Justice Rogers met the criticism head-on, saying that the effect of the procedure was purely beneficial, in serving to elucidate the points in issue clearly and expeditiously. The test of time has proven Justice Rogers to have been correct. Whatever textbooks might teach in terms of the judicial hierarchy, the leadership shown by a single trial judge is capable of trumping misplaced opposition, even when expressed by the ultimate appellate court.

The open-mindedness of judges is most seriously challenged, however, when outsiders identify problems, and to their credit, propound some solutions. Experts of all kinds routinely underestimate the perceptions and ideas of the well-intentioned outsider. There is a Chinese proverb which states: “If you want to know what water is like, do not ask a fish.” Mid-way through this year, the Australian Financial Review launched its “Judicial Tracker”, which measures delays in delivering judgments by the average number of days over which individual judges have reserved judgment, and compares individual judges and different courts with each other on that basis. The idea is not perfect, but it is good, and you do not have to be Voltaire to realise that the perfect is not the enemy of the good. As Charles Dickens’ Mr Venus said to Silas Wegg in Our Mutual Friend: “There is no gold without its alloy.” However, the Australian Judicial Officers Association, which claims to be the representative body of the Australian judiciary, wrote a hostile letter to the editor of the AFR, attacking the AFR’s ranking as “unfair and inaccurate”. Now, it is fairly easy to think of ways in which the “Judicial Tracker” might be improved, such as dividing the number of days that judgments are reserved by the number of hearing days, so that a lengthy trial is not treated statistically as the equivalent of a short ex parte hearing. But I do not know of any court that bothers with that more refined metric for the purposes of their own analysis. If you have the stamina to read the Federal Court’s Annual Report, you will see a similar rough-and-ready metric to that used by the AFR applied by the Court in assessing the extent to which the Court as a whole meets, or falls short of, its unambitious goal of reserved judgments being delivered within three months, both overall and within particular practice areas. The Annual Report for 2024–25 tells us that the Federal Court’s statistics treat a 24-day hearing in a shareholder class action as a single matter, just as they do a relatively straightforward corporations matter which might be resolved by an ex tempore judgment (p 29).

Every judge knows that he or she is on trial every day in terms of the quality and efficiency of their service to the public, and should welcome those in the broader community taking a lively interest in how we measure up, particularly when combined with some determination to improve matters. Public scrutiny is one of the most effective ways of guarding against complacency, and complacency typically leads to failure. But public scrutiny and criticism tend to run up against the bureaucratic instinct for insularity, and the judiciary is sadly no stranger to that impulse. The worst thing about the inflexible bureaucratic cast of mind is not its inefficiency, but the fact that it stifles some of the most interesting and productive forms of innovation. If there is any open-mindedness about it, then to adopt a line of Philip Larkin’s, it is a mind that lies “open like a drawer of knives” (“Deceptions”, 1950).

Let me conclude by thanking you as practitioners for the able and efficient way in which you go about your work. The Federal Court and other public bodies in this field benefit greatly from the high standards of those practising in intellectual property, and from the well-earned respect which you show for each other. I wish you all the joys and blessings of Christmas, and of the holy month of January.