Many people I speak with are surprised to hear that it is possible to arbitrate patent infringement and patent validity, thinking those are issues that must be litigated. Unaware that its possible, few appreciate the significant benefits of arbitrating patent disputes.
National legislatures are increasingly recognizing the arbitrability of substantive patent issues (e.g., patent infringement, invalidity, enforceability). Indeed, the WIPO Arbitration and Mediation Center states that “it is now broadly accepted that disputes relating to IP rights are arbitrable”. As a general rule, however, you should always consider arbitrability in both the arbitral seat / place of arbitration as well as the jurisdictions in which an award is likely to be enforced.
The United States has a relatively long and established track record with patent arbitration. In 1982, the U.S. patent statute was amended to provide for a broad scope of arbitrability. This coupled with a strong pro-arbitration philosophy makes the U.S. a particularly attractive arbitral seat for patent disputes. More recently, Hong Kong amended its arbitration act in 2017 to expressly provide for arbitration of patent disputes, as did Singapore in 2021. Given the increasing worldwide interest, it is expected other pro-arbitration jurisdictions will follow suit.
In future installments, we will discuss other common misconceptions and some of the more significant benefits of arbitrating patent 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.