The Comparative Scope for Arbitration of Patent Disputes: In the U.S., Switzerland, and Australia

Abstract

This paper critically examines the relationship between arbitration and intellectual property, specifically patent disputes. This paper adopts a comparative analysis approach and will compare the approach taken by civil law and common law systems toward the arbitration of patent disputes. This paper will primarily focus on the United States of America, Switzerland, and Australia. The process of obtaining a patent will be analyzed. The legislation and case law regarding the arbitrability of patent disputes will be discussed. A clear distinction between patent and standard essential patent disputes will be demonstrated. The difference between erga omnes and inter partes patent arbitral awards effects will be illustrated. The enforcement and recognition of arbitral patent awards will be critiqued, which demonstrates arbitrating patent disputes face various recognition and enforcement hurdles. Multiple factors need to be considered before determining whether arbitration is the right forum for resolving patent disputes. This should be determined on a case-by-case basis. In conclusion, the outlook for arbitrating some patent disputes is unclear, but arbitration should be the preferred forum for standard essential patent disputes to keep royalty rates confidential.