Final Remedies and Enforcement - Chapter 9 - Arbitration of Intellectual Property Disputes in the United States
The remedies contained in the arbitral award are, from the perspective of the claimant, the end toward which the whole process of arbitration is focused. So, it is important for a party contemplating arbitration to understand, before embarking on an arbitration and indeed, before agreeing to arbitrate, what relief the arbitrator is empowered to award and how that award may be enforced in the face of a recalcitrant losing party. This is particularly so for IP disputes.
Arbitration is a voluntary process, and, ideally, parties to arbitration should comply voluntarily with the arbitrator’s award, without the need for the courts to intervene. But in practice it is frequently necessary to seek judicial enforcement of arbitral awards. As well as considering what relief the arbitrator has the power to award, a claimant may well need to consider in advance its potential remedies should the respondent fail to pay what the arbitrator requires or fail to comply with an injunction or another order that the arbitrator enters. Furthermore, there are some special considerations that come into play in IP disputes since IP disputes may deal with the validity of property rights and thus may implicate the rights of third parties. For example, what is the effect of an arbitrator’s decision on the validity of the patent with respect to persons other than the alleged infringer?
This Chapter considers the forms of relief an arbitrator may award – both monetary and non-monetary. It considers judicial enforcement of awards in the state and federal courts. Finally, it considers some topics specific to intellectual property disputes, such as the effect of an award on patent validity and the requirements of the Patent Act for obtaining confirmation of an award.