Originally from Dispute Resolution Journal

Recent decisions in U.S. and Canadian courts have shown a clear judicial preference for the use of ADR in resolving intellectual property cases, according to Rodney Kyle. He briefly examines the recent case law and notes several factors that sometimes make arbitration preferable to litigation if parties are seeking finality and consistency of decisions in intellectual property disputes.

Some recent Canadian case law accords with United States case law. Together, they have increased the opportunity for both consistency and finality in the adjudication of international intellectual property disputes.

Consistent with all three courts in the United States case of Markman v. Westview Instruments Inc.,1 two federal court of Canada decisions2 have implicitly been abrogated by three recent unanimous decisions of the Supreme Court of Canada. The Supreme Court of Canada decisions are Whirlpool Corporation et al v. Camco Inc. et al,3 Whirlpool Corp. v. Maytag Corp.4 and Free World Trust v. Électro Santé Inc.5