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ARBITRABILITY OF INTELLECTUAL PROPERTY DISPUTES – A PARADIGM SHIFTING MOVE (By-Derin Joy)
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ARBITRABILITY
OF INTELLECTUAL PROPERTY DISPUTES – A PARADIGM SHIFTING MOVE
Authored By-Derin
Joy
1. General Introduction
In this era of modernity &
revolution, Trade law has widened its spectrum both domestically and
internationally. Intellectual property is considered a vital aspect of most
business transactions. Even though, the term “Intellectual Property Rights” has
not been defined under any Indian statute, According to the World Intellectual
Property Organization (WIPO), Intellectual Property refers to creations of the
mind, such as inventions; literary and artistic works; designs; and symbols,
names and images used in commerce.[1] IP
is of great relevance in today’s global market. The aspects of IP
standardization is done through TRIPS agreement under WTO & WIPO. Legal
provisions have always provided a backbone for commercial aspects such as IP
rights itself, despite that, disputes have occurred from time to time in cross
border transfer of IP rights. Goods & services being transacted globally
can be considered a huge achievement but it carries the added risk of
Intellectual property right infringement. Such disparities can be resolved in
trade law via regimes such as TRIPS. Therefore, the rise in international trade
has made contractual cross border agreements and other claims in IP
infringement very profound. Arbitration and its various forms have paced itself
largely internationally, however even after its immense reach arbitration has
never been the chosen way to settle disputes here in India. Is Arbitration a
means to resolve intellectual property disputes? Yes, Arbitration can be seen
as an avenue to resolve transactional disputes or any intellectual property
disputes. In today’s world, IP infringements and other disputes have become
apparent and do not adhere to the norms of traditional litigation. However, if
Alternate Dispute Resolution can be seen as a way to resolve disputes, an
interesting question is what will be the subject matter of arbitration? What
kind of IP disputes is arbitral and what are not? Different jurisdictions have
dealt with this matter in different ways. By the virtue of nature of trade,
whether international or domestic, rules concerning it are contained under the
UNCITRAL Model Laws. Since,
Intellectual property rights are characterized as rights in rem, claims arising
out of contractual agreements have been made subject matter of arbitration.
Internationally, Commercial arbitration has been given stage to work
efficiently by the means of WIPO and Arbitration centres around the globe. It
is quite common that commercial business are moving at the speed of light and
do not have the time & effort to combat the traditional court adjudication.
Another problem with traditional court litigation is that, unlike arbitration
which has a provision to set up a tribunal consisting of judges and an expert
on the said matter of arbitration can be extremely helpful, while litigation in
courts do not have such a practice. Most judges are unfamiliar with
technological matters in patent law, copyright, trademark etc. It is pertinent
to note that intellectual property rights is a state granted right. Therefore,
whether an arbitration tribunal has the power to adjudicate said matter also
remains a question. In India, arbitration of IP disputes have garnered
attention but has not been put to use in several years.
Arbitration in commercial disputes
can be tricky but needs emphasis and clarity. Issues such as nature of the
damages, place of arbitration, and venue of arbitration, jurisdiction and
awards shall be discussed in length with regard to IP disputes.
In this Article, the author attempts
to summarize all the adjudications both municipal and international to
understand how the courts and various law adjudicating forums have given the
judicial pronouncements and other decisions in this regard. It is essential to
note that only precedents can make one aware about the future of arbitrability
of IPR Disputes in India. The research will have essence and meaning when the
objective aligns with the reality.
2. Jurisprudence Of Intellectual
Property Rights
Intellectual property rights were
recognized as a requisite to tool to conserve ideas which resulted in big
scientific accomplishments, artistic or otherwise. A need to bring out
legislation to regulate the affairs such as mentioned was becoming necessary.
The author during her research came across various interesting developments
which had happened in IP Law a century before. In 1856, for the first time the
Patent Legislation was introduced in India, and Intellectual Property was given
the legal recognition, the act was subsequently repealed in 1857 and then in
1859. In 1911, the Indian Patents and Designs act, 1911 was brought in
replacing all the previous Legislations on patents and designs. With Minor
Amendments in 1920 and 1930, a major Amendment in 1945 took place. And after
independent Committee constituted to ensure conducive Patent system for the
National interest which finally made the patent act 1970 and Patent rules 1972.[2]
Further, three pillars of IP law namely Copyright laws, Trademark Law and Patent
Laws were evolved subsequently. The copyright act 1957 was enacted by
Independent India by which we are governed till date. The Trademark Act 1940
was the first statute in India on Trademark Law, the said Enactment was Amended
in 1943 then in 1946. Then this enactment was replaced by the new legislation
the Trade and Merchandise Act 1958. Then in 1999 a new trade mark act came into
force. The Trademark Act 1999 is governed by Trademark Rules 2002 Geographical
indications in India are governed by Geographical indications of goods
(registration and protection) act, 1999. Intellectual property development in
India can be seen in a very low spectrum. In a developing country like India,
it can be understandable that arbitration in itself hasn’t seen much light of
cases. The trend to lower litigation expenses and related factors still lack
awareness even among lawyers. However, Internationally, Arbitration, commercial
litigation and IP disputes go hand in hand and there have been various
conventions/treaties/organizations which have come up to provide nothing but
assistance to the world and its creative thinkers.
3. Claims Arising Out Of Intellectual
Property Rights – How Do They Transpire?
The WIPO defines Intellectual
Property as the ?creations of the mind: inventions, literary and artistic
works, and symbols, names, images, and designs used in commerce."[3]They
are intangible, and its value lies in its exclusive use and licensing by the
owner. They have emerged to be one of the most valuable commodities today due
to their worth in the economy. Intellectual property is generally classified
into two main categories of copyright and related rights and industrial
property which consists of either distinctive signs such as trademarks and GI,
and those properties such as patents, industrial designs and trade secrets that
are intended at stimulating innovation, design and creation of technology.[4]
Intellectual Property such as patents and copyrights are generally construed to
be of highly technical in nature, thereby demanding increased protection in the
global economy. However, other branches of intellectual property, such as
trademarks and trade secrets are also accorded with utmost importance in
today‘s world, since they might be the most valuable assets of a corporate entity.
Intellectual property is an area of law where irreparable harm can occur if
disputes are bogged down in lengthy litigation. One issue that pertains with
respect to disputes of Intellectual Property at an international level is the
conceptual differences in the way the different countries view such rights.
Domestic laws provide with their own protection regimes based on their
perspectives.[5] Until
the TRIPS Agreement came into force it was highly difficult to gain uniformity
at a national level. Some nations view intellectual property as a tool used by
industrialized nations to control less developed nations. The less
industrialized nations, such as India, used to initially give very little legal
protection to intellectual property within their borders. Until the TRIPS
Agreement came into force, the field was approached contrastingly by states at
the international level. The domestic laws which gave protection to
Intellectual Property was also quite often not in tangency with international
standards. Example, In the US, the domestic law required that patent
applications should be maintained in utmost secrecy and no disclosures are made
with regard to the patent until it is duly granted to the applicant.[6]
However, these filing procedures differed both at a municipal and an
international level. Therefore, it gave rise to increased litigations. These
discrepancies are bound to occur in place of municipal international governance
of the matter.
Issues that arise out of intellectual
property may be of different types, such as, issues of infringement, questions
of validity and disputes arising out of licensing of intellectual property
between persons. Each of these issues in intellectual property leads to the
parties involved to seek for varied remedies. Most commonly sought for remedies
under civil law systems involve injunctive reliefs, declarations as to
ownership status of intellectual properties or even specific performance.
Additionally, damages as compensation are also sought for. These remedies may
be sought against private persons or even the state, if the dispute under
question relates to questions of registration or grant of monopolies.
4. Right In Rem & Right In
Personam
In most jurisdictions, it is an
established notion that violation of an intellectual property right constitutes
a tortuous act. This has been understood through various precedents that such
tortuous acts which may arise in any contractual arrangement is suitable to be
adjudicated by a private forum and these tribunals may be empowered to grant
awards as well.[7]Moreover,
intellectual property is mostly considered as a specialised expansion of the
law on property in the general body of laws.[8] It
is merely a specialised set of laws incorporated in specific statutes in order
to govern incorporeal property. Furthermore, it is imperative to note that any
property dispute or claims must also be applicable to intellectual property,
even to the extent of making them arbitral for the purpose of private
adjudication. However, in reality and under the laws of various jurisdictions,
especially in India, arbitrability of intellectual property disputes is not so
easily established. The peculiarity of disputes in intellectual property that
makes its categorisation as arbitrable difficult is the multiplicity of its
nature that depends upon the type of claim that arises out of it. Claims in IPR
can either be actions in rem or actions in personam. For instance, registration
and validity of an IPR relates to the concept of ownership, and hence any claim
that arises out of issues in them stands against the whole world, being action
in rem. On the other hand, in a contractual transaction between owner of an IPR
and another party in furtherance of licensing or transferring the right to use
the IP, any action pertaining to the scope of contractual rights or a breach in
the term of contract, is exercised only against the party, constituting an
action in personam. This principle of superficial division of actions into rem
and in personam proves successful in most cases where subject matter in
question is corporeal property, from a general standpoint. Unfortunately, in
intellectual property cases, a third set of action may also arise- when a party
to a contract alleges infringement of intellectual property against the other.
Although infringement of intellectual property generally considered as an
action in rem, the transformed nature of such an action into an act in
personam, often makes things complicated. To attain clarity on the
complications of arbitrating IP is however not that simple. The complexities
can be attached to the dual nature of rights arising out of IP well as the dual
nature of remedies that can be sought for. Another way of looking at this can
be assessing if the action or remedy involved in the dispute is likely to
affect third parties or the world at large, or is protected under privity of
contract. Another example could be, a car owner's right over his property is a
right in rem but there is no reason why a dispute regarding the liability to
compensate that arises owing to an incident (damage to the car) cannot be
arbitrated.[9]This is
because the claim involved belongs to the category of private claim against the
concerned party, and no third party has any role to do with it. Suppose there
exists a non-exclusive technology licensing agreement where a patented
technology is licensed for a limited period. The agreement provides that the
licensor shall be entitled to damages if the licensee violated the terms of the
agreement. It is true that like real property, the right of the owner of
intellectual property is a right in rem. At the same time, the right of the
owner as licensor against the licensee is also a right in personam. This dual
nature of the right to remedies seems to create confusion in order to determine
arbitrability. The ultimate reason why the classification of in rem and in
personam was recognised to determine arbitrability was to ensure that the
rights of third parties who might have an interest over the subject in issue do
not get trampled upon.[10]However,
in the case of intellectual property, since concepts like validity and
registration are matters in the nature of rem, any awards passed on such
matters shall have an erga omnes
effect. It is well established that arbitral tribunals are have ruled out this
possibility way in advance that the awards will have erga omnes effect.[11]The
erga omnes effect of IPRs renders
them to be rights in rem, thereby enabling the owner of the IPR to exclude the
other persons from using or exploiting it. Hence, it is needless to emphasise
that an intellectual property right can be exercised against the world at
large, as contrasted from a right in personam which is an interest protected
solely against specific individuals. Actions in personam refer to actions that
determine the rights and interests of the parties in the case's subject matter,
whereas actions in rem refer to actions that determine the Patent
Controversies, rights of the parties not only among themselves, but also
against all other persons who may claim an interest in the property at any
time.[12]A
clear distinction is drawn in instances of intellectual property whose grant
requires State action such as registration for instance patents and trademarks,
and other types of intellectual property which are not required to be
registered. A clear distinction is also made between purely contractual issues,
in which the validity or ownership of the contract is not in question, and
other conflicts. Further delineation is made based on whether the issue
involves adjudication on the legality or ownership of the intellectual property
in question. Intellectual Property Rights are essentially rights created under
Statues and are considered to be territorial in nature.[13]Provisions
containing recognition, registration and enforcement of these rights are
incorporated in domestic laws, in accordance with the international legal
instruments which have gained prominence due to the presence of multinational
trade and transfer involving IPRs. Intellectual property rights have been
characterised by certain features. One such feature is that territoriality.[14]This
means that IPRs must be enforced on a country-by-country basis. Another
implication of the territoriality principle is that the recognition given to
intellectual property is attributed to national governments and domestic
statutes. Hence, most concepts such as registration of Intellectual Property
rights and their validity are governed by the statutes under which such
provisions are governed. International intellectual property law is founded on
the notion of territoriality. The legislation of the jurisdiction where the
right is registered will determine whether or not an infringement has occurred.
There is a very real possibility of having to launch various lawsuits in multiple
jurisdictions to preserve and enforce rights where commodities are sold or
services are delivered globally. For those looking to make sure that they do
not infringe IPRs, this means potentially having to determine what rights exist
on a country-by-country basis. This isn‘t always an easy task, as some IPRs are
easily identifiable due to its registration, while some such as copyrights need
not always be registered. And even where there is registration, searching can
be time-consuming and expensive and, in some jurisdictions, the facility is
limited or non-existent. Another characteristic feature of intellectual
property rights is their exclusivity. Granting of IPR vests with the holder the
ability to exclude others from exploitation of that intellectual property. This
means that Intellectual Property Rights are conferred by the state with an erga omnes effect. This is so done in
pursuance of public interest. Granting of monopolies in the form of
Intellectual Property Rights promote public interest by achieving socio
economic goals such as domestic research, transfer of technology, enhancement
of skill sets, research and development and so on.[15]It
is a well understood principle that the intellectual property being intangible
property, its value is attributed to the exclusive rights that its rightful
owner shall exercise, and also to the extent of commercially exploiting such
rights. There may also be disposal of intellectual property rights by its
owner, amounting to contractual waiver of rights. Dispute resolution concerning
Intellectual property is complex and needs to be looked at from two
perspectives; - rights and claims arising out of rights. The determination of
validity of an intellectual property is one question, for instance in the case
of whether a person is the rightful holder of a trademark, or a patent.
However, claims arising out of a right, for instance, rights vested on a
licensee of copyrights in an artistic work and the claims that shall rise out
of the right are contractual in nature and hence in personam. The adjudication
of disputes belonging to both of these natures is approached in different ways
by the various nations, both at municipal level and internationally. At the
international level, while the WTO offers for dispute settlement mechanism
while the WIPO has established the WIPO Arbitration and Mediation Centre. While
Intellectual Property Rights cannot per se be arbitrated since they are rights
in rem, claims of contractual nature arising out of them have been made subject
matter of arbitration in several instances. Moreover, given the skew monopoly
rights introduce, states endeavour to craft intellectual property policies to
draw a balance between levels of protection granted and benefits that members
of the State can derive from exploitation of such intellectual property. Given
the overall policy and the erga omnes
character of IP protections, disputes concerning IP are ordinarily reserved
within the sole domain of state courts, and are quite often discouraged to be
brought into an arbitration forum. Arbitrating upon intellectual property
rights is often discouraged also owing to reasons of public policy. One such
concern is the less intensive fact finding process and less rigorous evidential
proceedings that are part of arbitration process[16].
Limited review of arbitral awards may also be a reason. Despite these
complications, there is no reference to an explicit blanket ban on arbitration
of intellectual property rights. Arbitration as a mode of dispute resolution
has in fact experienced rapid growth and increased significance in recent
years. This is so due to the rendering of traditional litigation as an
unattractive option owing to exorbitant costs and long delays. Furthermore, as
business conflicts have become more global, more opposing parties have
expressed a desire for a neutral forum. This is because intellectual property
rights are worldwide in nature, and in most situations, the dispute involves
both the parties' national affiliations and the countries that granted the
property rights. International exploitation is particularly prominent in the
sphere of intellectual property because, unlike physical property, users can
exploit intellectual property in various locations as long as the prerequisites
for its physical embodiment exist. [17]Moreover,
licensing agreements allow a large number of people to use the intellectual
property at the same time. Arbitration is also considered to be attractive in
disputes involving intellectual property rights due to the highly technical
nature of the dispute and specialised subject matter, since parties can select
a knowledgeable arbitrator and design and control the procedures by which their
dispute shall be settled. However the varied approach of municipal courts and
international organisations towards this subject is what makes it interesting
to study, insofar as to attain answers. Arbitrability under arbitration law is
a concept that interpreted variedly by different forums, but is also gaining
widespread attention. There is a gradual movement towards, what is termed as,
universal arbitrability, which suggests that all matters with an economic facet
are prima facie arbitrable in most jurisdictions.[18]That
being said it is suggestive that intellectual property and disputes thereto are
being welcomed into the realm of arbitration. Most transfers in intellectual
property take place vide commercial agreements and hence, it is generally
considered as arbitrable subject matter as the transfer is contractual in
nature IPR form a crucial constituent of commercial transactions and are
comprised in the bundle of rights therein. To ipso facto declare them
non-arbitrable would upset the purpose of the Arbitration Act, impair the
efficacy of commercial arbitration and disregard party autonomy. Despite the
varied approaches taken by the different jurisdictions as to the arbitrability
of intellectual property disputes, the most commonly referred to ground of
reasoning is the public policy doctrine. Now that we know the nature of IPRs
and the claims that arise out of them, this chapter now intends to look at what
notions under the public policy doctrine is invoked to determine arbitrability
of IP disputes.
5. Unsettling Jurisprudence Of Public
Policy
Arbitration and
Intellectual Property dispute have one thing in common which is the privity of
a dispute. It is not out in the open as it is in a court proceeding rather it
is in a privacy of space between two parties. Arbitration is a form of dispute
resolution which majorly occurs when the parties are ready to discuss the matter
out of court and IPR is already a right in rem and therefore a negative right.
A negative right that it is goes against the very nature of public policy and
governance. Therefore it is important to determine that where does this party
autonomy end and public policy concern begin in an intellectual property
arbitration. If intellectual property where a dispute raises the validity
and/or ownership of intellectual property, it is necessary to identify those
issues that may arise whose scope extends beyond the essentially private domain
of traditional arbitration. A patent or a trademark, for instance, generally a
statutorily-created state grant of a limited monopoly or exclusive right of
exploitation.Within the judicial system to arbitration all or any differences
that may arise in connection with such contract relating to commercial matters
or to any other matter capable of settlement by arbitration, whether or not the
arbitration is to take place in a country to whose jurisdiction none of the
parties is subject. It is to be noted that there is no universally accepted or
approved definition of what can be understood as “jurisdiction with regard to
intellectual property” Another way to look at it would be like this, there is a
public expectation that contracts should be responded in a way that private
parties be given a right to enforce such an expectation or are entitled to
receive the damages for any kind of failure. In that way, the state has the
power to impose certain duties as such that can be done by exercising one’s
duty of care in one’s actions towards third party limitations. However, the
parties may often bargain legally to waive the exercise of such
publicly-imposed duties. In doing so, the general duty does not disappear.
Rather, its applicability in a particular situation is defined by the agreement
of the parties exercising a private choice. Thus, an early French commentator
made patents "part of a vaster subject the theory of monopoly."In
civil law systems generally, as in Anglo-American law, industrial property
rights were originally based in royal prerogatives to grant monopolies.[19]The
essence of the rights inherent in intellectual property is that they are the
exclusive personal property of the owner. New York Convention allows for
signatory, via a reservation to apply the convention “ only differences arising out of legal relationships, whether
contractual or not, are considered commercial under the national law of the
state.” The U.S. law provides for courts to determine the invalidity of a patent
as a defense to an infringement claim. In France, too, a court has the power to
declare a patent invalid. The court may also revoke a trademark on grounds of
improper registration or abandonment. As a public policy question, the issue of
the arbitrability of intellectual property is usually expressed somewhat
differently. Generally, Intellectual property licensing disputes are considered
arbitrable because they raise issues concerning private contractual
arrangements between parties. Even in a licensing case, a defense may be raised
concerning not the facts or the contractual terms, but the validity or
ownership of the intellectual property right that forms the basis of the
plaintiffs claim.[20]The
validity of an intellectual property rightis determined by reference to
national statutory principles, which may include public registration of the
right and the fact that these rights exist in the sphere of public grants has
led courts to suggest that their jurisdiction may not be circumvented by
private determinations; i.e., arbitration of the validity of these rights. What
is it that makes these particular state grants part of an immovable state
domain? Other state-imposed responsibilities, such as contract and tort, may in
certain circumstances be freely waived. Further, the fact that intellectual
property rights arise under a state grant is not sufficient to render such
rights automatically in-arbitrable. Let Suppose, In common law countries such
as India, UK, Canada, the property was derived from land owners, under which a
monarch possessed all property and the rights was derived from different parts
and transferred in various forms. However now instead of the monarch, the state
has replaced all rights and liabilities and therefore all private property remains
with the state and it can only grant nay sort of interpretation or rights
desired. An appellant court of law in America held in the matter of Beckman Instruments, Inc. V. Technical
Development corp[21],
said that that arbitration of a patent's validity was "inappropriate for
arbitration proceedings and should be decided by a court of law, given the
great public interest in challenging invalid patents." Therefore it can be
said that an arbitral award is merely a private affair, binding only on the
parties and having no wider impact, an arbitrator cannot make an award that has
an effect erga omnes. [22]The
ownership that inevitably implicates non-parties, and therefore, exceeds the
arbitrator's powers. This is seen as calling into question the basis of the
state grant of intellectual property rights.
6. Conclusion
The international organizations
dealing in the regulation and promotion of transnational trade activities, such
as the WTO, UNCITRAL, and ICC, as well as organizations dealing in building a
framework for IP such as the WIPO or the TRIPS Agreement under the WTO, should
engage in harmonized activities with each other for promoting arbitration as a
preferred avenue for dispute resolution in IP. This can be done to bridge the
gap between IP and other types of subject matters that form the primary content
of commercial transactions insofar as to consider IP disputes at par with such
other disputes. International forums which exclusively deal with IP arbitration
and other ADR services like the WIPO and the Dispute Settlement Body under the
WTO can dedicate an exclusive department or establish a dispute settlement
forum exclusively for conflicts concerning IP issues. Arbitration institutions
and other organizations like the UNCITRAL can also facilitate such actions by
providing draft arbitration clause models exclusively for contracts dealing
with licensing or transferring of IP so that a level of uniformity can be
achieved in such commercial transactions and their conflicts. At the global
level, traditional norms of IP laws should change, and the latest prospects of
IP should be recognized. International organizations must promote new forms of
IP and their potential in newly formed avenues of trade and technology so that
such new facets are incorporated effectively in commercial transactions.
Specialized rules for arbitration on disputes arising from such commercial
transactions may also be formulated by organizations like the WIPO or separate
arbitral institutions. The TRIPS Agreement can be modified to accommodate
changing facets of IP in the field of technology, pharmaceuticals, block
chains, and E-commerce. Accordingly, the WTO can also accommodate international
commercial transactions dealing with such subject matter under the purview of
its dispute resolution mechanism (DSU), in accordance with terms of the TRIPS
Agreement. Therefore, the international community can make consolidated efforts
to educate parties in commercial dealings regarding the benefits and challenges
in arbitrating IP disputes. As already discussed in the article, arbitrating IP
has both pros and cons, and ultimately, the parties must carefully employ a
dispute resolution mechanism that is most suited for their interests and
purpose. Thus, educatory reforms are necessary both at the international as
well as domestic level, in such a way that parties to commercial dealings in IP
are made fit to first analyze their issue at hand(or potential issues that may
arise in the future) and then decide upon the type of dispute settlement
mechanism best suited for them. Organizations and arbitral institutions can
also help by formulating draft arbitration clauses or models for specific
issues or arbitrable disputes in IP, which can be incorporated into commercial
contracts by interested parties. The concerning the position in India, the
courts needs to reach a consensus as to the question of arbitrability of IP
disputes. Legislative lacunae are a primary reason behind the non-clarity.
Indian legislature can amend the existing laws on intellectual property to
incorporate provisions that suggest that particular kinds of disputes of IP may
be subject to arbitration. Thus, statutory recognition can be conferred on
arbitrating contractual IP disputes, as seen in the US and Singapore. However,
since the intellectual property in India is regulated under various and
multiple statutes, amendment of each might be difficult. Hence new legislation
that exclusively lays down arbitrability qualifications for IP in commercial
contracts may be helpful
Article Information
ARBITRABILITY OF INTELLECTUAL PROPERTY DISPUTES – A PARADIGM SHIFTING MOVE (By-Derin Joy)
Author Name: Derin Joy
Title: ARBITRABILITY OF INTELLECTUAL PROPERTY DISPUTES – A PARADIGM SHIFTING MOVE
Email Id: derinjoy1999@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/02
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International Journal for Legal Research and Analysis
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