ADR is big, does it work in IP disputes?

On behalf of Kaufhold & Dix Patent Law posted in Patent Law on Tuesday, July 31, 2018.

People, being people, have disagreements. Relationships of all kinds get put at risk if disputing parties let the issue fester. Within the legal context, the traditional approach to this dilemma has been to litigate. Historically, the process involves bringing the dispute into the open. Negotiations follow, pressed by the knowledge that unresolved issues could wind up in court.

That can be costly, time consuming and ultimately frustrating. Most people would prefer to settle differences without sending it to an uncontrolled third party. That being the case, alternative dispute resolution (ADR) methods have developed that include mediation and arbitration. Touted as a way to achieve desired outcomes more quickly and at lower cost, ADR is in growing demand in many areas.

A question worth asking is whether it can work for intellectual property disputes. The answer depends greatly on the nature of the dispute, the characters of the parties involved and how willing they are to commit to required processes. Any ADR requires a willingness to work together to find solutions. Exploring the possibilities should include a thorough assessment of your situation guided by an experienced intellectual property attorney.

That said, there are advocates for the process among those who practice IP law internationally. One of them recently authored a guide on various options on behalf of the World Intellectual Property Organization. She lists some advantages of ADR as the following:

• Party Autonomy: The theory being that IP disputes can be complicated by jurisdictional conflict. With ADR, parties have more flexibility to mold processes according to their needs; selecting neutral locations, neutral experts and creating their own rules of engagement.
• Jurisdictional Neutrality: Globalization increases the threat of multi-jurisdictional fighting and parties can be motivated to wage separate battles in each country over each matter in dispute. ADR allows for a single process, whether it’s arbitration or mediation, potentially conducted in a venue unrelated to either of the party’s home countries.

As noted earlier, ADR is held out as a way to move toward resolution more quickly than litigation because of its customizability. Additionally, proponents argue it ensures greater confidentiality controls, while delivering final and enforceable outcomes.

Most would agree that having greater options to obtain legal remedies is a good thing. But in the end, determining which to pursue requires careful assessment of case facts and desired outcomes for maximum protection of rights.