Protecting Fizziness: Osgoode at the 15th Annual Oxford Intellectual Property Moot

Osgoode Hall Law School’s mooting team recently returned from the University of Oxford, UK, where they competed in the annual Oxford International Intellectual Property Moot. They achieved the highest preliminary round score and made the quarter-finals, losing to the eventual champion of the competition: Bucerius Law School, Hamburg, Germany.

The quartet of Jordan Fine, Alicja Puchta, Colin Lyon, and Adrienne Meyers are pleased to share their experience at the moot.


The Problem: A Dimpled Bottle and Sparkling Wine

Imagine: for 11 years, I have owned a valid patent monopoly on a glass bottle. The bottle has dimples lining its interior which enhance fizziness of carbonated drinks held within; but, I claimed the bottle specifically for enhancing sparkling wines. To what extent am I tied to that claim? In other words, can competitors fill my bottles with non-wine drinks (like sparkling apple cider, or non-alcoholic elderflower sodas) to avoid infringement?

Imagine too: I am not just an inventor but also a vineyard. So, for all 11 years, I have only sold a very affordable (and very profitable) high-alcohol wine in my bottle. It seems the local youths are getting quite drunk, quite fast from the combination of high alcohol and enhanced fizziness. Can my bottle patent be invalidated on grounds that it violates public policy or morality?

Finally, imagine: my wine belongs to a class of products known as “Erewine”: a double fermented sparkling white wine made from locally grown grapes. Does my competitor commit extended passing off by calling their non-alcoholic elderflower soda Erewine too?

The problem for the 2017 annual Oxford International Intellectual Property Moot was packed with IP issues. It landed this year on the three major themes above: claim construction, invalidity for violating public policy or morality, and extended passing off.

The problem was drafted craftily by Dr. Emily Hudson—Chair of the Organising Committee and co-ordinator for the moot—and it left certain key facts ambiguous (for example, the patent claim is significantly excerpted). Counsel for either side had ample wiggle room to devise and frame unique and creative arguments.

The Competition

After three months of careful legal research, drafting, reviewing, and editing two facta—one each for the Appellant and the Respondent—Osgoode submitted them to Oxford. A month later Osgoode was delighted to discover we were invited to the oral rounds, as our facta ranked among the top 24 of the nearly 60 teams that submitted.

Mooting demands outstanding advocacy. Accordingly, preparations and rehearsals escalated quickly. We had two months to sharpen our oral arguments before intellectual property practitioners and judges, and reach a sufficient level to compete with our adversaries.

Because of the competition’s international nature, it was essential that we could concisely answer complicated questions, the answers to which could span countless legal systems and common law principles. Comprehension, memorization, and delivery were crucial. Studying and practicing became a daily ritual. Finding any opportunity, we rehearsed in the shower to a panel of rubber ducks, practiced in public while walking our dogs, and presented submissions to our patient and supportive significant others and parents.

As we improved, we were given some exceptional opportunities. We argued weekly before panels of practitioners at Cassels Brock & Blackwell LLP and Deeth Williams Wall LLP, including two of our coaches Stephen Selznick and Stephen Henderson. We were thrilled to argue before former Supreme Court Justice, the Honourable Marshall Rothstein. We made trips to the Federal Court, before the Honourable Roger T. Hughes, and even to the Supreme Court of Canada to argue before Madam Justice Rosalie Silberman Abella. The utter highlight of our legal education was arguing before Justice Abella from a podium frequented in landmark decisions by the best and brightest legal minds in Canada.

 

 

(L-R: Colin Lyon, Madam Justice Rosalie Silberman Abella, Aviv Gaon, Jordan Fine)

 

 

(L-R: Jordan Fine, Jennifer Davidson, Alicja Puchta, The Honourable Roger T. Hughes, Colin Lyon)

 

Preliminary Rounds (Thursday March 16th – Saturday March 17th)

After a scrumptious traditional English breakfast in Pembroke College’s exquisite dining hall we carted along ancient cobbled streets several suitcases packed with our heavy bundles of authorities to Oxford’s law faculty. Shortly following an introduction by Prof. Hudson, the competition began. Over two days we faced teams from four universities, before panels comprised of two or three judges.

On day one, we first confronted strong advocacy from Tsinghua (Beijing) before Hilary Pearson, PLC, and Professor Brian Havel (University of Oxford). We then met another tough foe in Monash (Melbourne), before Prof. Hudson (King’s College London), and Mitchell Beebe (Herbert Smith Freehills LLP).

On day two, we opened as appellants against the formidable champions, Bucerius (Hamburg), before Jonathan Ball (Norton Rose Fulbright), and Karen Fong (Collyer Bristow LLP). We ended the preliminary round against the other finalists and hometown rivals, Toronto, before Ian Starr (D Young & Co LLP), Jen Le Miere, (Kymab Ltd), and Marta Iljadica, (University of Aberdeen).

Despite strong performances in all four rounds—at least according to our coaches, Aviv Gaon (Osgoode Hall Law School PhD Candidate) and Jennifer Davidson (Deeth Williams Wall LLP)—we finished the preliminary rounds modestly with only one win and three losses. At dinner on the eve of the quarter-finals, we were surprised to learn we were among the top eight teams; little did we know at that time our scores placed us as the top seed entering the playoffs!

Playoffs (Saturday March 18th)

We once again faced Bucerius—as respondents this time per moot rules—in the quarter-finals, before a panel of three judges including Geoffrey Pritchard, (Three New Square) and once again Marta Iljadica. Facing strong advocacy from both sides [the author comments as impartial sideline observer acting exclusively for the appellants] the panel had a very tough decision to make. Ultimately, Bucerius was victorious.

(Of course, not all was lost for team Osgoode; albeit disappointed by the loss, we were granted an extra few hours to tour Oxford’s local scenery and ancient pubs.)

In the final round, Bucerius faced respondents from the University of Toronto. The finalists argued in front of a panel of three esteemed judges in the Honourable Mr Justice Birss, Her Honour Judge Melissa Clarke, and the Right Honourable Lord Justice Floyd. The hot bench challenged the competitors with posers, but also met them frequently with humour and wit. It appeared close at the round’s end, and Bucerius took the win.

The Gala

The gala took place shortly after the finals, and once again in the charming Pembroke dining hall. During a three-course meal, the award winners were announced (see the complete list here, along with pictures from the finals and gala here). As noted, Osgoode was surprised and delighted to receive the award for highest ranked team after the preliminary rounds.

The Oxford Moot was an utterly spectacular experience. We all agreed that the work we put into our written and oral arguments exceeded any other academic pursuits before. We are certainly all stronger legal minds and advocates as a result. Make no mistake, we had fun too. We owe special thanks to Professor David Vaver for his support and guidance; to Justices Abella, Rothstein, and Hughes for taking the time to hear us argue the morality of dimpled bottle patents; and our coaches who were with us week after week: Jennifer, Aviv, Stephen Selznick and Stephen Henderson from Cassels Brock. We could not have succeeded without you. You each made such astoundingly significant contributions to our legal education and we hope in turn we have made you proud of our accomplishments.

 

(L-R: Aviv Gaon, Alicja Puchta, Jordan Fine, Colin Lyon, Jennifer Davidson, Prof. David Vaver)

 

Jordan Fine is Senior Editor of the IPilogue and Intellectual Property Journal and a JD candidate at Osgoode Hall Law School.  He was happy to contribute this blog on behalf of his teammates, Colin Lyon, Alicja Puchta and Adrienne Meyers.

Leave a reply

Your email address will not be published. Required fields are marked *