I recently had the distinct pleasure of interviewing IP litigator and mediator Jay Gordon Taylor about the arbitration and mediation of intellectual property disputes, the first part of which follows Jay's short bio below.

Mr. Taylor is a partner with the Indianapolis, Indiana law firm of Ice Miller.  His primary practice area is intellectual property law with a focus on patent, trademark, copyright, and trade secret litigation and mediation.

He also concentrates in business aspects of intellectual property law such as acquisition, sale and licensing of intellectual property assets, and computer hardware and software sale and licensing. 
  

Part I:  Arbitration of Intellectual Property Disputes 

MS. PYNCHON: Do you find that IP cases benefit from arbitration or is arbitration becoming so burdened with discovery, motion practice and the like that it’s little better than litigation?

MR. TAYLOR: I have never been a big fan of arbitration except in the case of international disputes. In my experience, arbitration has been only slightly less costly and time consuming. The absence of a right to appeal if the result is erroneous would caution me against arbitrating a patent infringement dispute again.

I once had a client who faced a potential $450 million infringement exposure after an arbitrator reached a very dubious interpretation of a license clause. Because the arbitral award was binding, there was no way to challenge the opinion. Luckily, we ultimately won by proving a combination of non-infringement and invalidity. That, however, came after years of litigation and tremendous cost, most of which could probably have been avoided if there had been an appellate process after the arbitral decision.

MS PYNCHON:   Do you believe the parties would likely have agreed to an appeal by one or more arbitrators before the arbitration commenced? 

MR. TAYLOR: No, the license clause which had been negotiated years before required binding arbitration. The parties were locked into that clause. 

MS. PYNCHON:  Would arbitration be more attractive to you today if your opponent would agree to arbitral "appellate" review?

MR. TAYLOR:  No.  I do not think arbitration with an appeal is appreciably more appealing (quicker, less disruptive and less costly) than litigation in federal court.

MS. PYNCHON: Would you arbitrate any patent infringement cases today?

MR. TAYLOR: I think arbitration can be beneficial in international disputes. Most foreign companies distrust the US court system and are accustomed to resolving disputes without litigation. There is the additional problem of enforcing a judgment against a foreign entity. If the foreign entity has no US presence or assets, the judgment can only be enforced only by initiating an action in the courts of the country where the entity is located. Courts of most industrial countries will enforce an arbitration decision without question whereas they might not enforce a foreign court decision.

In tomorrow's post, we'll continue our interview with Jay Taylor about the mediation of IP disputes.