Clients and lawyers often consider negotiation or litigation to be their only options for resolving intellectual property (IP) disputes. While IP arbitration is on the rise, there is still a tendency to view these processes as alternatives to one another. A much broader range of processes can and should be considered to resolve IP disputes in most situations. While seasoned IP practitioners tend to focus on adjudicative processes (e.g., litigation and arbitration), non-adjudicative processes can help reduce the time and cost to outcome, improve settlement rates, preserve business relationships and provide higher satisfaction ratings. These non-adjudicative processes may be non-evaluative (e.g., mediation) or evaluative (e.g., conciliation or expert determinations). The inclusion of non-adjudicative processes (particularly mediation) in conjunction with adjudicative processes is likely to lead to significantly faster, cheaper and better outcomes, with higher compliance and satisfaction ratings in over 90 per cent of IP disputes, both in domestic and international matters. It should be considered in all IP disputes.
Read moreWhen Intellectual Property Is the ‘Investment’: Arbitrating against Sovereigns
There is no shortage of disputes in which patent holders may find themselves embroiled. ‘Trolls’ challenge the patent’s validity in an attempt to extort rent.[2]The oft-used practice of ‘evergreening’ comes under scrutiny for artificially extending patent exclusivity.[3] Resolution of disputes such as these typically revolves around purely patent law concepts, such as utility, obviousness or prior art enablement. The same concepts, as well as contractual issues, are also at the heart of patent-based commercial arbitrations in instances where the dispute involves licensees, as discussed in other chapters.
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