Documente Academic
Documente Profesional
Documente Cultură
in IP/technology disputes
Ernst-Jan Louwers
Jaarvergadering Orde van Octrooigemachtigden
Eindhoven, 11 April 2014
And arbitration
Agenda
Intro
Boutique firm: lean & mean in the premier league
Risk management, compliance and governance
Advice, contracts and litigation
Enable and empower
Killing showstoppers
On top of tech developments with 8 lawyers and CTO
Board member Brainport Centre for Technology & Law
Exploitation
o
o
o
o
o
Infringement
Licensing and distribution
Royalties
Exclusivity
Termination
Arbitration / expedited
arbitration
Formal consensual
procedure
Expert determination
Consensual procedure
Binding or non-binding
In principle internationally
enforceable
Final unless arbitral appeal
or remission
Preventing costly and
lenghty procedures
Experts opinion =
contract
Non-binding leaves open
other procedures
Preventing costly and
lenghty procedures
Party control
o More control by parties
o Selection of suitable decision-makers
o Parties may jointly choose applicable law, place and
language
Confidentiality
Finality of awards
Enforceability of awards
o New York Convention
Why no ADR?
Non contractual disputes
o Infringement
o Other unlawful behaviour, not under contract
Publicity
Establish public legal precedent
IP specific complexity
Nature of IP - monopoly
Territoriality and internationality of IP
o Validity, recognition and enforcement of award
o Arbitrability: depending on affected national IP
o (In)validity only inter partes?
validity issues only effect between parties?
Dutch law: exclusive competence of court at The Hague
for instance Belgian law: arbitration erga omnes with third
party right to oppose decision; art 51 Belgian Patent Act
IP specific complexity
Possible limitations to arbitrability of validity
Applicable law
o Substantive law
Existence, invalidation
Ownership title
Scope of protection
o Procedural
Arbitrable?
IP specific issues
Experts
Inter partes?
www.brainporttechlaw.nl
BTAI: why?
Existing legal frameworks may no longer fit new
realities created by technology
Increased and ever increasing complexity
Courts no specialists
No specialised ADR institute for technology
BTAI close to the industry
Supported by courts
BTAI: scope
National and international disputes
o technology
o tech company
Technology
o industrial high-tech, IT, automotive, nanotechnology, biotechnology,
gentechnology, robotics etc.
o but also manufacturing and low-tech
Examples
o
o
o
o
BTAI: advantages
Confidentiality
Cost effectiveness
Time
Specialists speaking the industrys language
List of specialists non-exhaustive
Documents to be exchanged electronically
Hearings to take place by videoconferencing
Urgent matters: arbitral injunction
www.louwersadvocaten.nl
louwers@louwersadvocaten.nl
040 2393203
06 52 048154