This multipart article examines the relationship between
arbitration and intellectual property, specifically patent disputes. This
article adopts a comparative analysis approach and compares the approach taken
by civil law and common law systems toward the arbitration of patent disputes.
The primary focus is on the United States, Switzerland, and Australia. This
article adopts a doctrinal legal research methodology. 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 that arbitrating patent disputes faces
various recognition and enforcement hurdles. This article asserts that multiple
factors need to be considered before determining whether arbitration is the
right forum for resolving patent disputes, and that those factors should be
determined on a case-by-case basis. This article concludes that the outlook for
arbitrating some patent disputes is unclear, but that arbitration should be the
preferred forum for standard essential patent disputes to keep royalty rates
confidential.