Research Cases of the United States Concerning Arbitration of Intellectual Property Disputes

서지정보

· 발행기관 : 한국중재학회
· 수록지 정보 : 중재연구 / 22권 / 3호 / 93 ~ 118페이지
· 저자명 : 장병윤

초록

This research is to study the cases of the United States concerning arbitration of intellectual property disputes. Thus, the purpose of this research is to show the U.S. researches on IP related cases for further researches of arbitration of IP disputes in Korea and comparative studies in the near future. In this research, the U.S. cases on arbitration of IP related matters were adopted and quoted to achieve the purpose of this research and for effective researches. Thus, the organization of the research was arranged by the cases in the fields of arbitration and intellectual property, especially for arbitrations of licensing disputes, patent disputes, and copyright disputes.
The arbitration clause is applied to contract principles as analyzed the arbitrability issues at courts about who can decide it and whether it is arbitrable on disputes. In general, the question of arbitrability is on the question of a judicial field. However, courts respect for arbitration where the clause of the arbitration is clear, unambiguous, and unmistaken statements because the Federal Arbitration Act covers the arbitration clause and the scope of arbitration. Thus, in that case, an arbitrator can decide arbitrability. However, in the United States, courts found that some cases have ICC rules to be bound, and others have AAA rules. Either ruleis required by the courts that the arbitration clause must be carefully made and provided clear and unambiguous statements.
Findings are: in the arbitration of licensing disputes, it was important to make clear and unambiguous statements in an agreement for the arbitration clause of both parties even the scope of arbitration agreement is broad or narrow. It gives us that a contract principle is applied to the disputes and thus, the provisions of the arbitration clause should be obvious and clear without misinterpretation or arguments at courts or arbitrators.
In the arbitration of patent disputes, most courts have followeda broad arbitration clause as analyzed the cases. A phrase of “arising under” or “relating to” in an agreement as the test of determination of arbitrability is important whether arbitration covers a broad statement for ADR and prevention of disputes. In addition, under patent or related rights, the agreement may contain a statement for patent validity or infringement matters to resolve disputes through arbitration because the arbitration is governed by the Federal Arbitration Act. Thus, this analysis indicates that as a result ofcomparing with the cases of the United States, the KoreaArbitration Act should be also clear and unmistaken statements for all necessary provisions to avoid ambiguous issues whether they are broad or narrow.
In the arbitration of copyright disputes, findings are, based on the cases, courts held that the validity of a copyright is not exclusive at the courts if there is a broad arbitration clause that contains the Copyright Act, and the Federal Arbitration Act supports courts to compel arbitration on thearbitrable claims. This indicates that an arbitration clause in the agreement even a copyright case has an important role in disputes for the court to determine whether it is arbitrable to compel the arbitration. Therefore, this research found that a broad arbitration clause in an agreement allowsan arbitrator to decide an award or rule upon intellectual property claims.
The results of this research indicate that scope of arbitration in an agreement applies to a contract principle, and the determination of infringement and validity matters in the arbitration clause is related to contract interpretation. Therefore, if both parties clearly and unambiguously do not decide otherwise, the question of whether both parties agreed to arbitrate is to be decided by the court. It means that it is not decided by the arbitrator if clear and unambiguous statements do not existed in arbitration clause. The arbitration clause must explicitly confer the power of determination to the arbitrator.

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