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International Arbitration Of Intellectual Property Validity

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Chapter Summary

Intellectual property (IP) litigation is widely perceived to be highly complex, unpredictable, and expensive. Many IP disputes directly or indirectly implicate issues concerning the validity or enforceability of the underlying IP right involved. While validity issues most commonly arise in patent matters, validity issues may also exist in trade secret, trademark, and copyright matters. For this and other reasons, despite the obvious attractions and virtues of arbitration, the arbitration of IP validity issues presents special challenges to the parties and arbitrators. This chapter explores those challenges and suggests techniques to overcome them. Putting aside the question of whether IP validity or enforceability is arbitrable, the mechanics of the arbitration should also be considered. Such issues as selection of an arbitrator or panel of arbitrators, choice of law, presentation of evidence, and form of award deserve careful evaluation. The chapter also explores these issues and provides some practical advise for consideration.

Keywords: arbitrators; choice of law; evidence; intellectual property (IP); international arbitration; IP disputes; litigation; patent matters; validity issues



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