The Procedural Benefits of Arbitrating Patent Disputes

Abstract

This paper considers how various types of patent disputes can be more efficiently resolved through arbitration, rather than litigation. For this analysis, it takes three types of patent disputes as a control sample – contractual disputes, infringement disputes and FRAND disputes – and assess how these disputes can be better resolved through arbitration in terms of several criteria, namely, the suitability of the decision‐makers, the number of forums in which disputes have to separately decided and enforced, procedural flexibility and confidentiality. The paper takes into consideration that certain types of patent disputes, such as infringement disputes and FRAND disputes are unlikely to be subject to pre‐existing arbitration agreements. In these types of disputes, parties may make the decision between arbitration and litigation based on strategic and tactical concerns, rather than legal ones. The paper concludes that, given this limitation, it is not possible to categorically state whether arbitration is more suitable than litigation for resolving patent disputes. The most sensible course to follow in adopting arbitration for patent disputes is for legal advisors to be familiar with the intricate benefits and pitfalls of arbitration in patent disputes, and to actively consider referring a dispute to arbitration over litigation after a dispute has arisen.