智力资产管理知识产权IP许可知识产权评估

知识产权争议中的挑战– I

This Article is the first in the series of‘ADR in IPR’. The second 文章 can be accessed 这里.

With growing trade and the inventive process taking place at a global scale demand for hastier resolution of disputes is required in the field of 知识产权 Rights [hereinafter, referred to as“IPR”]. Issues ranging from ownership to jurisdiction arise frequently. The use of Alternative Dispute Resolution [hereinafter, referred to as“ADR”] for speedier 争议解决 in 知识产权 has now been a long-developing niche.

A successful application of ADR in the field IPR would not just mean faster resolution of disputes but also cheaper ones. Growing businesses and start-ups that are much prevalent in this period of Digital India, see the potential in acquiring Intellectual property in developing their business, however, they can’t afford to spend the huge time and resources on resolving disputes in acquiring the 知识产权. Even in the perspective of larger organizations like Google, 脸书, Apple, etc. who continuously innovate in various fields of technology require the quick acquisition of 知识产权 (mainly patents). This, of course, is not the case if you are Elon Musk.

One must keep in mind that ADR in itself is a developing field in India and not every alternative 争议解决 mechanism is equally effective especially in case of IPR 争议解决. Among the ADR mechanisms that will be most convenient for IPR 争议解决 will be Arbitration and Mediation. Both of these procedures are fairly simple ones that offer the parties confidentiality, time and cost-effectiveness. Being purely a voluntary process, it turns IPR 争议解决 into a business-friendly process.

This 文章 of the series will assess the issues faced in IPR 争议解决 followed by the scope of applicability of ADR mechanisms in IPR 争议解决 and finally the individual analysis of arbitration and mediation application in IPR 争议解决 in subsequent 文章s.

问题 常规知识产权争议解决

As discussed before the conventional means of 争议解决 in IPR face a number of issues that demand the use of specialized 争议解决 techniques. Courts lack the understanding, expertise, and specialization that is required in such 争议解决. Below listed are the list of common problems faced in resolving IPR disputes in court followed by how ADR mechanisms are well equipped to address them.

  • 缺乏技术专长

自从最终仲裁员(双关语意) 法院是法官,其专业知识在于法律领域, 缺少能够欣赏知识产权实质内容的技术专家 索赔。这并不是说在会议期间永远不会拜访专家 proceedings but is usually a rare process because of the cost and time that it 需要。但是,就ADR机制而言 当事人有自由和相互选择个人的能力(例如 仲裁员或调解员)。

  • 漫长的过程

通过主动程序解决争议的里程碑是 处理。随着案件的激增和法官人数的增加 比例很小,任何情况下肯定会花费很长时间 是时候解决,特别是如果对方不愿意让步。的 反对律师可以很容易地延长诉讼时间 仅根据法律技术进行处理。在ADR中可以轻松避免这种情况 旨在快速和相互解决争议的机制。

  • 隐私权问题

诉讼过程得到了 法。如果法官认为适合要求任何私人信息, parties, then the parties are bound to reveal it. And as a court proceeding, it becomes a matter of public 任何外行都可以访问的记录。当然,“商业或贸易 secrets’ can be laid before the court however they do not guarantee results. On 另一方面,ADR在此过程中代表机密性。

  • 控制和灵活性问题

由于法律规定的诉讼程序缺乏 flexibility in controlling the process of 争议解决. One may say that 诉讼过程需要自己的生命。这种风险会进一步加剧 判断阶段,尽管 prayers of the parties, the remedy is at the will of the judge. However, in the 在ADR机制的案例中,存在着更大的控制,选择和控制因素 在所有阶段都具有灵活性。在ADR的末尾, process parties would have walked away with something desirable in hand unlike 诉讼程序中提供的补救措施。

  • 管辖权问题

如上所述,今天早些时候的贸易和商业已经 达到了全球规模,所以他们有 disputes that accompany them. With companies inventing and conducting business 与全球其他地方的公司 问题不仅仅会在业务中出现,而且还会出现 问题解决。最好的例子是管辖权问题。 Consider this example; a company X hailing from India in collaboration with a 美国的Y公司创新 产品。现在由于未知原因, 有关创新的权利产生争议;然而 jurisdiction of patent 争议解决 is unclear. Hence, a lot of time and 首先,在确定诉讼地点和法院浪费金钱 其他手续。想象一下这样的负担 对缺乏资源和时间的唯一创新者征收。 ADR mechanisms, on the other hand, offer the parties the much-required comfort and 灵活讨论问题。

A commonly pointed out issue with the conventional 争议解决 mechanism is that when the remedy is pronounced by the judge, only one of the party’s take away something back with them, sometimes at the end of the litigation even they are at loss. On the other hand, on opting for ADR mechanisms all parties become winners. 

This 文章 is a part of the series in which the author talks about Alternate Dispute Resolution in IPR disputes.

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