PATENTLY DIVIDED: THE ARBITRABILITY OF PATENT DISPUTES WORLDWIDE
Arbitration has become a recognised method for resolving intellectual property (IP) disputes, including those related to patents. To many, it is often surprising to learn that patent infringement and patent validity issues can be resolved through arbitration rather than requiring litigation. The World Intellectual Property Organization supports this trend by considering that IP disputes are broadly considered arbitrable. Arbitrability refers to the question of whether a particular legal issue, such as patent validity or infringement, can be resolved through arbitration rather than through traditional court litigation. This concept is important as it affects the enforceability of awards and allows parties to select arbitration as an effective method for conflict resolution.
As patent disputes often involve parties from different countries, the rules governing arbitrability vary significantly across jurisdictions, creating complexities for multinational corporations, inventors and legal practitioners. Understanding the divergent approaches to arbitrability in various legal systems is essential for navigating the global landscape of patent disputes and ensuring that parties can select the most appropriate forum for resolving their conflicts. This article will thus examine the arbitrability of patent disputes in jurisdictions across the world.
Australia
In Australia, there is no specific statute providing for the arbitrability of patent disputes. Nonetheless, such disputes are generally considered arbitrable by Australian courts. In the 2011 decision, Larkden Pty Limited v. Lloyd Energy Systems Pty Limited, for example, the Supreme Court of New South Wales found that arbitrators may resolve disputes between private parties as to their rights in and entitlements to a patent application or an invention. However, disputes over patent grants and eligibility are non-arbitrable, as they are statutory powers bestowed exclusively on the Commissioner of Patents and the Federal Court.
Apr-Jun 2025 issue
Aceris Law LLC