Is ADR suitable for the resolution of intellectual property disputes?

Abstract

Intellectual property (IP) is the branch of law that protects innovations and creations, such as new technological inventions, literary, artistic and musical creations, distinctive signs, computer programs, trade secrets, microchips and geographical designations. These creations and inventions may be protected by patents, trademarks, trade secrets and copyright, or other types of IP. These intellectual property rights (IPRs) can nevertheless give rise to many types of disputes. A number of these disputes relate to validity and ownership, whereas others concern licensing to use the protected types of IP. In a number of cases, these disputes relate to illicit copying or counterfeiting or agreements concerning the transfer of IP. This paper will examine two main issues. First, it explores the possibility of using different types of ADR, namely arbitration and mediation, to settle disputes concerning IPRs. In other words, can all disputes relating to patents and trademarks in particular be settled by arbitration or mediation? Second, if it is possible to use these mechanisms to resolve IP disputes, this paper will highlight the advantages for the parties of choosing arbitration or mediation over litigation, when confronted with such conflicts. In exploring the two issues, this paper will draw attention to a number of IP cases that have successfully been decided by arbitration.