Arbitration Gaining Favor In IP Disputes

Patent litigation activity has slowed a bit according to a PWC report, but median damages are going up. Under recent Supreme Court decisions, district courts have broad and largely un-reviewable discretion to award attorney’s fees and costs to successful parties in IP litigation. Arbitration has generally been viewed as appropriate for licensing disputes, not patent matters, but possibly due to the increased risk of triple damages and fee awards, the American Arbitration Association has experienced an acceleration of post-dispute submission of patent infringement cases. The American Intellectual Property Law Association policy statement says that for many disputes there are more effective methods of resolution than litigation, and data from a World Intellectual Property Organization survey showed large savings in time and cost were achieved by using arbitration instead of litigation to resolve technology disputes. Nevertheless, arbitration is not appropriate for very large or very small IP cases.