Resolving intellectual property rights (“IPR”) issues through alternative dispute resolution (“ADR”) proceedings was a technique long-developing in many major countries. Despite the earlier presence of the Arbitration Act in United States law, the subject of use of arbitration in IPR situations, especially regarding U.S. patents, remained an open and contested issue, until the original addition of 35 U.S.C. § 294 to the U.S. Patent Act in 1982. U.S. law is now resolved in the availability of IPR arbitration as an ADR tool, either through a “pre-problem” contract, such as a license, or as a “post-problem” mechanism elected and/or established by agreement. There are basics that underlie use of arbitration generally, which are also primary in IPR situations.
Kenneth R. Adamo,
Overview of International Arbitration in the Intellectual Property Context,
2 Global Bus. L. Rev.
available at http://engagedscholarship.csuohio.edu/gblr/vol2/iss1/4