Arbitration offers many advantages in addressing and resolving disputes, specifically intellectual property disputes. Among these advantages are party control (the parties retain control of the process and issues to be decided to a greater degree than if the matter was submitted to the courts),1 certainty of forum (the risks of inconsistent results can be avoided where intellectual property disputes implicate the laws and procedures of multiple countries),2 speed (arbitration can be faster since it is not hostage to court dockets and calendars),3 control of arbitrator selection (the parties can select arbitrators with particular expertise),4 flexibility (in process and substance),5 privacy and confidentiality (there is greater likelihood that a business relationship can be preserved or restored),6 enforceability (awards in New York Convention7 signatory nations are enforceable in all other signatory nations),8 lower costs9, and a greater likelihood of finality (arbitration decisions are rarely appealable),10 to name just a few.11

There is nevertheless a perceived reluctance to choose arbitration for intellectual property disputes. Reasons for this that are often cited include: (1) the desire to retain the possibility of invoking legal strategies and appeals in “bet the company” intellectual property disputes; (2) a need to keep the availability of publicity as a means of effecting investor perceptions; (3) a preference to retain flexibility in modifying and adapting claims as the case proceeds; (4) the desire to keep disputes in familiar forums where procedures and relationships are known; and (5) concerns that intellectual property disputes might not be arbitrable or that intellectual property arbitration awards would not be enforced such as on public policy grounds.12 The concern related to arbitrability and public policy in intellectual property disputes merit a closer analysis. Patent, trademarks, and copyrights, and to a lesser extent trade secrets, are specially vested with a public interest because the rights are creations of the state given to individuals for the broader common or public goods. Arguably then, the state which defined the nature and scope of intellectual property rights granted to an individual should retain control over enforcement to ensure that the public interest is protected. Obviously, this raises issues of the enforceability of the agreement to arbitrate and the enforcement of an arbitration award.13

 

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By Greg Wood

Drawing on an engineering background, thirty five years as an advocate in commercial, intellectual property and e-discovery disputes, twenty years serving as an arbitrator, 200+ mediations and 400+ hours of formal ADR training, Greg is “all in” in assisting parties in the speedy and economic resolution of disputes whether as a negotiation or settlement counselor, a mediator or an arbitrator. While Greg is available for mediation and arbitration of various disputes, his focus remains on complex commercial and intellectual property matters including e-discovery disputes. Greg can be reached at greg.wood@agencydr.com