In an earlier post, I had expressed concerns on the ability of Courts (at least in India) to do justice to patent infringement suits.
Continuing in the same vein, I think Courts would do well to invoke powers vested in them under Section 89 of the Code of Civil Procedure to refer patent matters to arbitration cells of Courts.
Arbitration may prove to be a much more expeditious way of seeing a patent dispute through, instead of wading through the sea of formality which is characteristic of conventional Courtroom litigation. (There is nothing radical in this suggestion, this thought has been out there for quite some time now and literature on this issue abounds)
Besides, considering the fact that Indian Courts are yet to get the hang of the rudiments of patent litigation such as construction of claims before battle lines are drawn, arbitration may prove to be much more conducive a forum for the level of sophistication that patent litigation demands and deserves.
Of course, there are several “ifs” and “buts” to this proposal. For instance, if parties to the dispute are intransigent and there do not appear to exist “elements of a settlement which may be acceptable to the parties” (a requirement of Section 89 of the CPC before matters are referred for arbitration or mediation), I am not sure if the Court may still refer the matter for arbitration.
That said, in practice, Courts do not seem to put too much stock in this requirement of “elements of a settlement” between the parties. Matters are routinely and mechanically referred for arbitration or mediation. Without commenting on the propriety of doing so, if this practice of unilaterally referring matters to mediation and arbitration cells is here to stay, Courts might as well do the same for patent matters.
Having said that, patent litigation allows Courts to clarify certain aspects of the law and provide the Patent Office, applicants and practitioners some much required judicial guidance on standards and interpretational bottlenecks. Referring matters to arbitration might affect the evolution of a patent jurisprudence which is the dire need of the hour.
On too many issues of critical importance, there’s a herd mentality, with very few enlightened souls questioning the adoption of certain practices. Litigation, in more ways than one, helps in evaluating the legality and wisdom of such practices.
The only issue with litigation (which is THE issue) is that it lacks speed and one can never be sure if the peculiarity of patent law and the dialectics of the business of innovation are understood by Courts.
Hoping that at least some of us would explore arbitration as an option to resolve disputes, I intend to write more on arbitration in general, and its application to IP disputes. Suggestions, material and comments are welcome!