A patch of heaven.
Monday, July 20, 2009
Thursday, July 2, 2009
Never Ever Settle
(Runners who participated in the recent Mizuno Run)To Settle or Not To Settle
xxx But to insinuate that some IP stakeholders are forced to enter into compromise settlements with the accused “at an early stage, and on terms that are too favorable to infringers” because of the delays is going overboard.
The IACC, after lamenting about judicial delays, stated:
As a consequence, an increasing number of criminal cases are being settled at an early stage, and on terms that are too favorable to infringers. In many cases, IP owners question whether prosecutors are subject to undue influence in their consideration of the merits (IACC Letter to Ms Sybia Harrison dated February 10, 2006 Re: Request for Public Comment--Identification of Countries Under Section 182 of the Trade Act of 1974 (as amended), 71 Fed. Reg. 10 (January 17, 2006), page 44-45).
This assertion cannot be supported with facts.
First, settlements can only be completed with the consent of all parties involved, particularly, the complaining IP Stakeholder, and upon approval by a court. The court satisfies itself that no compulsion or threat of any kind vitiated the consent of the parties. Normally, this is done by requiring the affiant (complaining IP owner or representative) to take the witness stand and affirm under oath his desistance.
Second, if an IP owner becomes impatient because of the delays and decides to settle amicably his claims instead, that is his decision. If he settled “on terms that are too favorable to infringers”, that is his look-out.
Courts cannot follow one every step of his life and extricate him from bad bargains, protect him from unwise investments, relieve him from one-sided contracts, or annul the effects of foolish acts. Courts cannot constitute themselves guardians of persons who are not legally incompetent. Courts operate not because one person has been defeated or overcome by another, but because he has been defeated or overcome illegally. Men may do foolish things, make ridiculous contracts, use miserable judgment, and lose money by them — indeed, all they have in the world but not for that alone can the law intervene and restore. There must be, in addition, a violation of law, the commission of what the law knows as an actionable wrong, before the courts are authorized to lay hold of the situation and remedy it (Vales v. Villa, 35 Phil. 769).
Third, there is mischief in the statement: “In many cases, IP owners question whether prosecutors are subject to undue influence in their consideration of the merits.” This assumes erroneously that public prosecutors participate in the process of negotiating a settlement and are in some position to influence its outcome. This statement also disregards the fact that, in most, if not all, cases filed by IP owners, there is a private prosecutor engaged by the latter, who directly undertakes the prosecution of cases and advises on any negotiation for settlement.
IPO Director-General Adrian Cristobal was reported to have commented that the “practice of legal settlements in IP cases is "weakening" the system in the fight against piracy. Although a settlement is a recourse allowed by law, he said, this procedure does not give a good image of the government determined effort to stamp out piracy.” (“US ON RP’S IP POLICY: BIG BROTHER IS WATCHING”, Manila Bulletin Online, November 3, 2006, http://www.mb.com.ph/issues/2006/11/03/INFO2006110378741_print.html)
When asked for a reaction, Hwee-Chong Ng, chair of BSA Philippines Committee, reportedly explained that a "settlement is an integral part of the litigation process. When the infringing party is willing to admit wrongdoing, take steps to get legal, prevent recurrence, and adequately compensates the copyright holder, then taking such a route is a prudent process in such matters." (Ibid.)
Settlements, in general, are encouraged by Philippine procedural rules. They have emerged as an essential component of an effective anti-piracy or anti-counterfeiting strategy. An IP owner does not need to apologize for resorting to it.
Contrary to the statement of Director General Cristobal, settlement of IP cases does not weaken the system in the fight against piracy and counterfeiting. It may lessen, nay, obliterate, the prospect of conviction, but it, in the end, still strengthens the system, because, notwithstanding the absence of conviction, justice had been served. It is, in fact, a testament to the effectivity of the system.
(Excerpt from 2006: Issues and Challenges in the Fight against Piracy and Counterfeiting in the Philippines. IP Coalition Submission to the United States Trade Representative, by Numeriano F. Rodriguez, Jr., February 12, 2007)
xxx But to insinuate that some IP stakeholders are forced to enter into compromise settlements with the accused “at an early stage, and on terms that are too favorable to infringers” because of the delays is going overboard.
The IACC, after lamenting about judicial delays, stated:
As a consequence, an increasing number of criminal cases are being settled at an early stage, and on terms that are too favorable to infringers. In many cases, IP owners question whether prosecutors are subject to undue influence in their consideration of the merits (IACC Letter to Ms Sybia Harrison dated February 10, 2006 Re: Request for Public Comment--Identification of Countries Under Section 182 of the Trade Act of 1974 (as amended), 71 Fed. Reg. 10 (January 17, 2006), page 44-45).
This assertion cannot be supported with facts.
First, settlements can only be completed with the consent of all parties involved, particularly, the complaining IP Stakeholder, and upon approval by a court. The court satisfies itself that no compulsion or threat of any kind vitiated the consent of the parties. Normally, this is done by requiring the affiant (complaining IP owner or representative) to take the witness stand and affirm under oath his desistance.
Second, if an IP owner becomes impatient because of the delays and decides to settle amicably his claims instead, that is his decision. If he settled “on terms that are too favorable to infringers”, that is his look-out.
Courts cannot follow one every step of his life and extricate him from bad bargains, protect him from unwise investments, relieve him from one-sided contracts, or annul the effects of foolish acts. Courts cannot constitute themselves guardians of persons who are not legally incompetent. Courts operate not because one person has been defeated or overcome by another, but because he has been defeated or overcome illegally. Men may do foolish things, make ridiculous contracts, use miserable judgment, and lose money by them — indeed, all they have in the world but not for that alone can the law intervene and restore. There must be, in addition, a violation of law, the commission of what the law knows as an actionable wrong, before the courts are authorized to lay hold of the situation and remedy it (Vales v. Villa, 35 Phil. 769).
Third, there is mischief in the statement: “In many cases, IP owners question whether prosecutors are subject to undue influence in their consideration of the merits.” This assumes erroneously that public prosecutors participate in the process of negotiating a settlement and are in some position to influence its outcome. This statement also disregards the fact that, in most, if not all, cases filed by IP owners, there is a private prosecutor engaged by the latter, who directly undertakes the prosecution of cases and advises on any negotiation for settlement.
IPO Director-General Adrian Cristobal was reported to have commented that the “practice of legal settlements in IP cases is "weakening" the system in the fight against piracy. Although a settlement is a recourse allowed by law, he said, this procedure does not give a good image of the government determined effort to stamp out piracy.” (“US ON RP’S IP POLICY: BIG BROTHER IS WATCHING”, Manila Bulletin Online, November 3, 2006, http://www.mb.com.ph/issues/2006/11/03/INFO2006110378741_print.html)
When asked for a reaction, Hwee-Chong Ng, chair of BSA Philippines Committee, reportedly explained that a "settlement is an integral part of the litigation process. When the infringing party is willing to admit wrongdoing, take steps to get legal, prevent recurrence, and adequately compensates the copyright holder, then taking such a route is a prudent process in such matters." (Ibid.)
Settlements, in general, are encouraged by Philippine procedural rules. They have emerged as an essential component of an effective anti-piracy or anti-counterfeiting strategy. An IP owner does not need to apologize for resorting to it.
Contrary to the statement of Director General Cristobal, settlement of IP cases does not weaken the system in the fight against piracy and counterfeiting. It may lessen, nay, obliterate, the prospect of conviction, but it, in the end, still strengthens the system, because, notwithstanding the absence of conviction, justice had been served. It is, in fact, a testament to the effectivity of the system.
(Excerpt from 2006: Issues and Challenges in the Fight against Piracy and Counterfeiting in the Philippines. IP Coalition Submission to the United States Trade Representative, by Numeriano F. Rodriguez, Jr., February 12, 2007)
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