The courts can also be conservative in their approach to damages in IP cases. An example of this can be seen in the New Zealand decisions on additional damages for breach of copyright. In the G-Star case (Jeanswest Corporation (New Zealand) Limited v G-Star Raw C.V. CA764/2013 [2015] NZCA 14), the Court of Appeal set out a schedule of additional damages awards cases in New Zealand. It referred to only one award that was over $20,000.
IP litigation is also an uncertain beast. In New Zealand we do not of course have a specialist IP bench. A judge may be coming to the field fresh, which can be challenging. And winning a case at first instance is no guarantee of ultimate success. In the US, appeals are successful in over 30% of IP cases (see: Eisenberg, Theodore, “Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes” (2004) Cornell Law Faculty Publications Paper 359, p672). I suspect that a similar statistic applies here.
So, there are some particular issues with litigating IP cases through the courts. How can ADR make a difference? Why is ADR so apt for IP cases?
Arbitration and expert determination allow parties the luxury of choosing their own dispute resolver, who has relevant expertise. This is incredibly significant. And the possibilities here extend beyond legal expertise. Parties can also agree to appoint a subject matter expert, such as a scientist, an engineer, or a marketing expert, to help resolve their dispute.
Arbitration and expert determination also allow parties latitude to design their own procedural rules, and determine the time and place of any hearing to suit themselves. This can be a huge aid to speedy dispute resolution.
Arbitrations and expert determinations are generally harder to appeal, and so give greater finality. Arbitral awards, in particular, can also have arguably greater international resonance, and enforceability – so important when so many IP disputes are multi-jurisdictional.
So, through arbitration and expert determination, parties to IP disputes can potentially achieve better-informed decisions, which are obtained more quickly, and which are more robust.
Mediation gives parties the chance to settle IP disputes. Settling IP disputes enables parties to avoid the costs, delays, marginal returns, and uncertainties of litigation. Settlement can also unlock a far broader range of resolution options. The following is a non-exhaustive list of what a settlement agreement can achieve in an IP dispute that a determinative process cannot order: