Intellectual Property and Alternative Dispute Resolution – How not to be “stultified by the dead hand of unresolved litigation”
By Mark Kelly
This article is about why alternative dispute resolution (ADR) methods, such as arbitration, expert determination, and mediation, are so apt for intellectual property disputes, and how we in New Zealand could improve in this field.
Why ADR is so apt for IP disputes
The American humourist Ambrose Bierce described a lawsuit as:
“A machine which you go into as a pig and come out of as a sausage.”
This description can be particularly apt for IP disputes fought through the courts. Such disputes can be complex, sophisticated, and expert-heavy. Consequently, they can be expensive. A compounding problem is that such disputes can be painfully slow – and delay can be kryptonite to innovation and market leadership.
The following are statistics cited by the World Intellectual Property Organisation (WIPO) on the duration and cost of patent litigation in UK and US Courts in 2006:
(WIPO Paper by Ignacio de Castro and Alvaro Loureiro Oliviera, 27-28 November 2012).
Delay can be a particular concern in patent litigation, given that patents are of course of only finite duration. This point is well illustrated by the UK’s “case of the cockroach trap”. In 1998, a patent application was made for a cockroach trap invented by a professor at Southampton University. But ownership of the patent was contested by another party which also claimed to be the inventor. In 2006, the case was the subject of a decision by the English Court of Appeal in IDA Ltd v The University of Southampton [2006] EWCA Civ 145, 2 March 2006. In delivering the Court’s decision, Lord Justice Jacob raised significant concerns about the litigation of such cases, stating:
“Parties to these disputes should realise, that if fully fought, they can be protracted, very very expensive,