ADR In IPR
Despite the growing number of disputes involving intellectual property rights, little attention has been paid to their resolution outside courts. The high stakes and the need for a definite and legally enforceable decision have probably kept these matters away from attempts to resolve them through alternate methods of dispute resolution.
However, parties have gradually begun to acknowledge the advantages that ADR has, over expensive and drawn-out battles in court. They also recognise that resorting to arbitration or mediation is more suitable to the very nature of the contentious issues in IPR disputes.
The use of ADR to resolve intellectual property conflicts is a subject that “lies at the intersection of two rapidly growing branches of law.”
The vast majority of intellectual property cases, especially cases involving copyright, patent and trademark infringement claims involve exorbitant costs of litigation, irrespective of the actual time required to either settle or for a judgement to be rendered. The majority of these costs arise from the necessity for expert testimony, especially in patent infringement cases. While copyright and trademark cases are less technical, these costs are not entirely done away with, due to the need to present market-driven data when trademarks are infringed, due to the high dependence on consumer perceptions. Not only do these trials drain the cash flows of the litigating company, they also become accounting liabilities due to ever-present possibility of an appeal being filed. Additionally, information, technical and commercial, that both parties may prefer to keep secret becomes publicly available. The confidentiality clauses in agreements for arbitration or mediation greatly aid the ...
... middle of paper ...
...tion of flexible rules allowing parties to use the most suitable method. Besides traditional arbitration, it also offers expedited arbitration, which includes sole arbitrators (rather than a tribunal of several arbitrators), shorter timetables, and condensed hearings to help facilitate faster and less costly settlements. By 2009, the WIPO Centre had administered over 80 mediations and 110 arbitrations. The 2014 Rules have dealt with a number of problems, and allow parties to call upon an emergency relief procedure prior to the establishment of the Tribunal, and to seek such relief before a judicial authority.
It appears that, we might do well to heed Lincoln’s advice to lawyers – “"Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser - in fees, expenses, and waste of time.”
Alternative Dispute Resolution (ADR) and traditional litigation are different types of ways to resolve legal matters. Traditional litigation can prove very costly and often times drawn out for lengthy periods. ADR affords companies the opportunity to resolve a legal matter in a reasonable amount of time and at times without the exorbitant cost of a trail. The case detailed in this paper is Kovalchick v. South Baldwin Hospital, which used traditional litigation, but reversed on appeal the hospital may want to examine the benefits of ADR.
He explains that when a conflict arises, we are less capable to take on the situation and are more likely to hand it off to authorities. He then comes to the conclusion of how they are overlooked, in terms of importance, and that individuals own their conflicts as one would own property. Furthermore, he justifies that these properties are stolen by law, therefore, no longer owned by individuals. Christie urges the need to eliminate ‘professionals’ from the sphere of conflict resolution in order to prevent the theft of conflicts. He explains his perspective of “conflict as property” as not relating to material compensation but rather to the ownership of conflict itself. He then recognizes the effects of victim losing the “property” originally, and puts forth a fix for this process. He introduces a way to remodel the justice system for dealing with conflicts in which the court is victim
In having to agree with either Huber or Abel?s views on litigation I must side with how Huber?s views on the process. I agree that citizens litigate too much on issues which simply to not need to be addressed. There are a great number of cases which are ludicrous and simply can be solved with common sense and are in no need of a judge or juries decision. If some would just act dignified instead of trying to get an easy buck our court system and country would be more successful and a less aggravating process.
The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.
Mediation is typically ordered in types of cases that there is significant emotional ties; creating a potential for hostility, loss of relationships or personal feelings getting in the way of reaching an agreement. Arbitration is the best option for cases where the parties simply cannot come to an agreement and decide to have someone else decide the outcome of the case for them, without the expense and formality of a trial. Arbitration is also useful in highly complex cases where it is necessary to have a highly trained professional come to the
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
Alternative Dispute Resolution or ADR refers to a number of various processes that can be used to resolve legal disputes other than by litigation. Recently, methods of dispute resolution which focus on arbitration, mediation and negotiation as an alternative to adjudication have gained notoriety. This notoriety may have been caused by the public perception that ADR methods are less expensive, more efficient, and more satisfactory than the normal traditional course of litigation. The goals of establishing these processes to resolve disputes as an alternative to more formal legal processes include: 1) to make the regular court system more efficient, less costly and more responsive to the needs of the litigants; 2) to offer alternative methods of dispute resolution in addition to the regular court system; and 3) to provide public education about the available alternatives.
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
Advantages and Disadvantages of Alternative Dispute Resolution. Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to obtain larger control over the selection of the individual or individuals who will decide their dispute.
Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser---in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation.
Because of its intangible nature, and particularly the increase of the digital domain and the internet as a whole, computers and cyber piracy make it easier for people to steal many forms of intellectual property. Due to this major threat, intellectual property rights owners’ should take every single measure to protect their rights. Unless these rights are either sold, exchanged, transferred, or appropriately licensed for use in exchange for a monetary fee, they should be protected at all cost. In order to protect these rights, the federal and states governments have passed numerous laws and statutes to protect intellectual property from misappropriation and infringement. “The source of federal copyright and patent law originates with the Copyright and Patent ...
Both forms of ADR have several common characteristics. However, one must consider that a neutral side in both procedures fulfils distinct from one another duties. Mediators do not have the objective to make decision, whereas arbitrators determine an outcome of the case. Upon the termination of the procedure, an arbiter renders a binding award that cannot be later avoided by disputants. During mediation, parties are not contingent upon the third side and enjoy freedom of actions needed for dispute resolution. In contrast, in case of failure to reach an agreement, parties are not legally bound for actions afterwards. By considering the true qualities of arbitration and mediation taken individually, legislation and scientists suggest that in single arbitration, arbitrators may use mediators’ functions to promote amicable settlement and functions of both arbitrators and mediators have incongruous
Mediation is a form of the Alternative Dispute Resolution (ADR). Mediation is a process which it assists disputed parties to arrive to a mutually agreed resolution without going to court. As the out of court problem solving approach, mediation is a more convenient way for parties which trying to avoid the hassle and loving some flexibility from the more rigid court procedure. Mediation can be said as an informal process of which parties during this process is encouraged to work together among the disputed parties in good faith in order to solve their problems and disputes at a lower financial cost and it consume lesser time as opposed to the court procedure. Mediation recently has become more common as one of dispute resolution process especially for disputes which have relations to divorce matter, child custody or even for child visitation especially for its privacy and confidentiality.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...