This Article is the first in the series of ‘ADR in IPR’. The second article can be accessed here.
With growing trade and the inventive process taking place at a global scale demand for hastier resolution of disputes is required in the field of Intellectual Property Rights [hereinafter, referred to as “IPR”]. Issues ranging from ownership to jurisdiction arise frequently. The use of Alternative Dispute Resolution [hereinafter, referred to as “ADR”] for speedier dispute resolution in intellectual property has now been a long-developing niche.
A successful application of ADR in the field IPR would not just mean faster resolution of disputes but also cheaper ones. Growing businesses and start-ups that are much prevalent in this period of Digital India, see the potential in acquiring Intellectual property in developing their business, however, they can’t afford to spend the huge time and resources on resolving disputes in acquiring the intellectual property. Even in the perspective of larger organizations like Google, Facebook, Apple, etc. who continuously innovate in various fields of technology require the quick acquisition of intellectual property (mainly patents). This, of course, is not the case if you are Elon Musk.
One must keep in mind that ADR in itself is a developing field in India and not every alternative dispute resolution mechanism is equally effective especially in case of IPR dispute resolution. Among the ADR mechanisms that will be most convenient for IPR dispute resolution will be Arbitration and Mediation. Both of these procedures are fairly simple ones that offer the parties confidentiality, time and cost-effectiveness. Being purely a voluntary process, it turns IPR dispute resolution into a business-friendly process.
This article of the series will assess the issues faced in IPR dispute resolution followed by the scope of applicability of ADR mechanisms in IPR dispute resolution and finally the individual analysis of arbitration and mediation application in IPR dispute resolution in subsequent articles.
Issues with conventional IPR dispute resolution
As discussed before the conventional means of dispute resolution in IPR face a number of issues that demand the use of specialized dispute resolution techniques. Courts lack the understanding, expertise, and specialization that is required in such dispute resolution. Below listed are the list of common problems faced in resolving IPR disputes in court followed by how ADR mechanisms are well equipped to address them.
- Lack of Technical Expertise
Since the final arbitrator (pun intended) in the courts is the judge, whose expertise lays in the area of law there is an absence of a technical expert who can appreciate the substance of the IPR claims. This isn’t to say that an expert will never be called upon during the proceedings but is usually a rare process because of the cost and time that it entails. However, in the case of ADR mechanisms the parties have the ability to freely and mutually choose an individual (say arbitrator or mediator) with the relevant expertise.
- Lengthy process
Landmark to dispute resolution by the initiative process is the length of the process. With the pendency of cases skyrocketing and the number of judges proportionally minuscule, the case of any sorts is sure to take a very long time to resolve, especially if the other party is unwilling to budge. The opposing lawyer can easily lengthen the litigation process simply on legal technicalities. This can easily be avoided in the ADR mechanisms which are intended at speedy and mutual dispute resolution.
- Privacy Issue
The litigation process is backed with the force of law. In case the judge sees fit to demand any information private to the parties, then the parties are bound to reveal it. And as a court proceeding, it becomes a matter of public record accessible to any layman. Surely, arguments of ‘business or trade secrets’ can be laid before the court however they do not guarantee results. On the other hand, ADR stands for confidentiality in the process.
- Control and Flexibility Issues
As a procedure established under law parties lack the flexibility in controlling the process of dispute resolution. One may say that the litigation process takes a life of its own. This risk furthers into the phase of judgment, wherein despite the prayers of the parties, the remedy is at the will of the judge. However, in the case of ADR mechanisms, there exists a greater element to control, choice and flexibility at all stages. At the end of the ADR, process parties would have walked away with something desirable in hand unlike the remedies offered in litigation proceedings.
- Jurisdictional Issues
As discussed, earlier today’s trade and commerce has reached a global scale and so they have disputes that accompany them. With companies inventing and conducting business with companies elsewhere in the global issues are bound to arise not just in the business but also issues with the issue resolution. The best example for the same is the issue of Jurisdiction. Consider this example; a company X hailing from India in collaboration with a company Y in the USA innovates a new product. Now due to reasons unknown, a dispute arises as to the righter pertaining to the innovation; however, the jurisdiction of patent dispute resolution is unclear. Hence, a lot of time and money is wasted in courts in first ascertaining the place of litigation and other formalities. Imagine such a burden being levied on a sole innovator who lacks the resources and time. ADR mechanisms, on the other hand, offer the parties the much-required comfort and flexibility in discussing the issue at ease.
A commonly pointed out issue with the conventional dispute resolution mechanism is that when the remedy is pronounced by the judge, only one of the party’s take away something back with them, sometimes at the end of the litigation even they are at loss. On the other hand, on opting for ADR mechanisms all parties become winners.
This article is a part of the series in which the author talks about Alternate Dispute Resolution in IPR disputes.