Article by Rutendo Mugadza-Mugwagwa

[1]Intellectual property(IP) refers to the creations of the mind, inventions, literary and artistic works, symbols, names and images used in commerce. Frequently when faced with an Intellectual property dispute, business executives and attorneys fail to consider the unique attributes and potential advantages of alternative dispute resolution. (ADR).

This article discusses ADR methods which include mediation, negotiation and arbitration and show how they may become valuable to IP Practitioners and their respective clients. [2]Intellectual property is a knowledge based intangible asset which should be protected at all times from infringement by the public eye. IP is a central component of the contemporary knowledge economy and its efficient exploitation is of crucial importance. It is important to promote and protect IP for several compelling reasons which include the progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture. Secondly the resources for further innovation, thirdly the promotion and protection of IP spurs economic growth, creates new jobs and industries and enhances the quality and enjoyment of life.

Although an IP dispute can be resolved through court litigation, parties are increasingly being encouraged to submit submit their IP disputes to mediation, negotiation and arbitration or other alternative dispute procedures. Mediation, Negotiation and Arbitration are the most used methods in solving and IP disputes, one of the reasons being that outcomes are reached at a much faster pace than court litigation while preserving business relationships.

MEDIATION

Mediation provides substantial benefits for parties with IP disputes and is widely used in complex IP matters to resolve disputes. Many of the courts with the heaviest dockets of IP cases strongly encourage mediation.[3] Mediation can be particularly valuable for IP property disputes because of the complexity of the applicable law. During mediation, a neutral third party assists the conflicting parties in crafting a settlement. In this process the parties themselves try to create a solution that will work. At the conclusion of mediation, the parties can both claim ownership of the resolution. In most situations, resolution of IP disputes does not require an “either/or” result in which one party walks away with all the rights at issue. Instead parties often consider some form of shared rights to be acceptable or even preferred suit.

NEGOTIATION

To begin with, a definition of negotiation is instructive. Negotiation is a general bargain: give and take process between two or more parties, (each with its own aims, needs and viewpoints), seeking to discover a common ground and reach an agreement to settle a matter of mutual concern or resolve a conflict.[4] What is unequivocal from this definition is that good negotiation is not positional bargaining but rather problem-solving or interest-based . Negotiation must not be a zero-sum game in which one side wins but a process leading to a settlement for the mutual good. This means that in such a negotiation, you are not only trying to advance your own position at all cost but also trying to hear the other side and find out what works best for all the sides involved in the negotiation process. Contrary to the traditional view of viewing those on the other side of the negotiation as adversaries, when you become a good negotiator, you  must view them as “Partners with differences”.[5] As a good negotiator, you will be hard on the problem rather than being hard on the other person or people.

ARBITRATION

The ability to exploit, protect and enforce IPR on international basis is very often business critical. Arbitration offers a number of real benefits of a certain IP dispute. The advantages of using arbitration to resolve IP disputes are demonstrated by its rising use in recent years. Arbitration can reduce costs which are often prohibitively high in IP lawsuits. It can improve efficiency of resolution. Arbitration gives parties to IP disputes more flexibility regarding procedure than would be available in any Court. IP disputes often involve parties from various countries which can make arbitration preferable for purposes of enforcement of an award.

The private nature of arbitration can also provide advantages in IP disputes. Many Court filings are readily available from the court’s file. In contrast, arbitration is private and parties can keep proceedings entirely confidential. Confidentiality obligations are often self-imposed on the parties by agreement.

Unlike a trial, ADR allows the parties to determine for themselves the degree to which such info will or will not be made publicly valuable.

WHY ADR?

ADR offers many distinct advantages. Many IP attorneys and their clients do not yet regularly consider ADR as a means for resolving their disputes. ADR process are relatively new to the IP field and should be used more frequently. General principles of ADR include the object of mediation, negotiation and arbitration is to obtain a fair resolution of disputes by an impartial third party without unnecessary expense or delay. Parties should be free to agree how their disputes are resolved subject only to such safeguards are necessary in the public interest.

CONCLUSION

In conclusion, it is clear that IP has a significant and increasing economic value and that the legal system is being forced to deal with increasing numbers of types of IP disputes. Therefore, it is mainly up to the parties to decide on how best they aim to solve their dispute depending on their cases and relevant aspects they desire to maintain during and after the course of the legal process. Mediation, Negotiation and or Arbitration are both attractive options for parties that place a premium of the preservation or enhanced of their relationship, seek to maintain control over the dispute settlement process, value confidentiality or want to maintain their public image in the long run.

[1] Nancy Neel Yend, Cathy E Rincon “ADR AND IP: A PRUDENT OPTION” The Journal of Law and Technology (1996).

[2] Patricia Barclay “Mediation of IP disputes-worth a shot” Vol 2 No 4, (2004)

[3] Cohn, Lisa Claire (2003) “Mediating Intellectual Property disputes” ADR Bulletin: Vol 6 No 2, Article 3.

[4] dictionary definition

[5] citation from Linda and Jeff