Our experience as registered patent attorneys who specialize in patent litigation, coupled with our experience as both counsel and arbitrator in international commercial arbitration makes us uniquely qualified in the niche practice of patent arbitration.
The arbitration of intellectual property (IP) disputes is a rapidly expanding area of law. The World Intellectual Property Organization (WIPO) Arbitration and Mediation Center, reports that its filings (arbitration, mediation and expert determination) increased by over 15% from 2018 to 2019, was steady in 2020 and increased 44% from 2020 to 2021.
We represent client is both international and domestic patent arbitrations. While the arbitration of patent disputes is not a new or novel concept, wide-spread use of arbitration to resolve patent disputes has been elusive, in large part because of questions misconceptions about the arbitral process and/or a lack of appreciation of the significant benefits that arbitration can provide over litigation.
Patent Infringement, Validity and Enforceability Are Arbitrable
The arbitrability of patent disputes is increasingly recognized by national legislatures. Indeed, WIPO Arbitration and Mediation Center asserts that “it is now broadly accepted that disputes relating to IP rights are arbitrable.”
Parties Can Chose to Submit to Arbitration After a Dispute Arises
Traditionally, arbitrations involving patents most commonly arose from breaches of license agreements, research and development agreements, technology transfer agreements, and employment agreements. Most commonly, the agreement to arbitrate is set forth in a dispute resolution clause. Patent infringement/validity disputes typically do not arise from any contract. The lack of a prior agreement to arbitrate, however, is not an impediment to arbitration. Parties can agree to submit their patent infringement dispute to arbitration at any time – even after litigation has commenced.
Some of the Substantial Benefits to Arbitrating Patent Disputes
Multi-jurisdictional disputes can be resolved in a single arbitration
Another benefit of arbitrating patent disputes is the ability to resolve global disputes in a single proceeding. This not only eliminates the need multiple suits in multiple countries, but can also eliminate the scenario that exists in some countries (e.g., Germany and Japan), wherein invalidity is addressed in the patent office but infringement is addressed in court. Resolving such multi-faceted disputes in a single arbitration avoids inconsistent results, dramatically reduces costs and provides the finality your company needs.
Ability to select the arbitrators' qualifications
Arbitration allows the parties to choose arbitrators with patent, technical, industry and/or any other preferred qualifications. Such qualified arbitrators can dramatically reduce the expense of having to educate the trier-of-fact, often allows for a more focused proceedings and can result in a more reasoned decision in cases involving exceedingly complex technical issues.
Arbitral proceedings provide a higher degree of confidentiality
While confidentiality is often available in discovery and early states of litigation, many courts and particularly those in the United States, strongly disfavor court filings or decisions being kept from the public. Thus, in order to enforce your patent rights, you likely risk public disclosure of competitively sensitive technical and business information. In arbitration, the parties can choose to keep all evidence, all awards and even the existence of the arbitration itself confidential.
Patent disputes are resolved faster by arbitration
Another attractive feature of arbitration is flexibility. The parties are free to structure their dispute as they see fit. Such flexibility may favor prioritizing the resolution of some issues to either narrow the scope of the dispute or possibly facilitate settlement. Experienced arbitrators work with the parties and tailor the process and timetable to the specific needs of the case at hand as opposed to the one-size-fits-all approach of national courts. Whereas the time from the filing of a complaint for patent infringement to trial is typically measured in years, arbitration of patent infringement can be efficiently concluded within 12 months.
Arbitration is a fraction of the cost of litigation
The flexibility of arbitration allows for more efficient and cost-effective proceedings. The 2021 AIPLA Economic Survey reports that the costs of arbitrating patent and IP disputes paid was on average 58% of the cost of litigation. In addition, the parties can agree to (and many institutional rules provide for) costs and attorney fees being awarded to the prevailing party.
Let Our Experience and Expertise Work For You
Our clients turn to us for their most challenging cases. Don't let our size fool you – we are regularly retained as lead counsel in bet-the-company cases and recently obtained a $475,000,000 arbitration award for one of our clients. We work hard to maintain our reputation for consistently developing and presenting creative legal strategies that allow our clients to succeed in high-stakes domestic and international disputes.
Contact us for a free consultation and let us explain how we can help you successfully resolve your next patent dispute in a more timely and cost-effective manner.