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Resolving intellectual property disputes through arbitration, P.2

In our previous post, we began looking at using arbitration to resolve intellectual property disputes. The desirability of resolving intellectual property disputes through arbitration lies not only in the fact that arbitration can be less expensive and less of a hassle than litigation, but also in the fact that it provides parties privacy to resolve the dispute.

One point we made last time is that, although it is possible to resolve trademark and copyright cases in arbitration, arbitration decisions on these issues do not set precedent that can be applicable in other cases. The situation is similar with patent rights disputes. There is statutory authority for parties to resolve patent infringement and validity disputes through arbitration, but the award is unenforceable until the United States Patent and Trademark Office is given notice, and awards in such cases are only binding between the parties. 

Because settling intellectual property disputes via arbitration has been recognized, whether by the courts or by statute, as a valid practice, arbitration clauses are often included in intellectual property agreements. In cases where intellectual property agreements do not call for arbitration, parties may consider entering into an arbitration agreement after a dispute has arisen.

In addition to allowing parties to privately settle an intellectual property dispute, arbitration can also allow one party control in selecting an arbitrator, which can provide a potential advantage in terms of the outcome. Arbitrators are, of course, bound to settle disputes in a fair and impartial manner, but selecting the right arbitrator should involve a consideration of the arbitrator’s background, experience, and previous decisions. 

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