WIPO: International Survey on Dispute Resolution in Technology Transactions

In March 2013, the WIPO Arbitration and Mediation Center has presented a Report with the results of its International Survey on Dispute Resolution in Technology Transactions (Survey). The Survey had been designed to assess the current use in technology-related disputes of Alternative Dispute Resolution (ADR) methods as compared to court litigation, including a qualitative evaluation of these dispute resolution options and the results of this Survey provide a statistical basis to identify trends in the resolution of technology-related disputes as well as  emerging best practices as potential guidance for intellectual
property stakeholders in their dispute resolution strategies.

The Survey had been developed with the support of the International Association for the Protection of Intellectual Property (AIPPI), the Association of University Technology Managers (AUTM), the Fédération Internationale des Conseils en Propriété Industrielle (FICPI) and the Licensing Executives Society International (LESI) in collaboration with in-house counsel and external experts in technology disputes from different jurisdictions and business areas.

Respondents

393 Respondents (law firms, companies, research organizations, universities, government bodies or self-employed) from 62 countries (based in Europe, North America, Asia, South America, Oceania, the Caribbean, Central America and Africa) have completed the Survey.

Respondents are active in different business areas, including pharmaceuticals, biotechnology, IT, electronics, telecom, life sciences, chemicals, consumer goods and mechanical.

Findings

The core findings of the Survey are as follows:

• Technology-related Agreements Concluded in the Past Two Years:  Of the types of agreements listed in the Survey, Respondents concluded most frequently non-disclosure agreements (NDA), followed by assignments, licenses, agreements on settlement of litigation, research and development (R&D) agreements and merger and acquisition (M&A) agreements. The subject matter of such agreements related more often to patents than to know-how or copyright.
• Agreements Leading Most Often to Disputes:  Respondents were asked to estimate what percentage of the technology-related agreements they concluded led to disputes. As such agreements, the questionnaire listed, in this order, NDAs, R&D agreements, licenses, settlement agreements, M&A agreements and assignments.
• Choice of Dispute Resolution Clauses:  Court litigation was the most common stand-alone dispute resolution clause (32%), followed by (expedited) arbitration (30%) and mediation (12%). Mediation is also included where parties use multitier clauses (17% of all clauses) prior to court litigation, (expedited) arbitration or expert determination. Respondents generally perceived a trend towards out-of-court dispute resolution mechanisms.
• Types of Technology Disputes and Party Objectives:  For contractual and non-contractual disputes, patent issues arose nearly twice as often as copyright or know-how issues.
• Mechanisms Used to Resolve Disputes: Type, Time and Costs  The most common mechanism used to resolve technology disputes was court litigation in Respondents’ home jurisdiction, followed by court litigation in another jurisdiction, arbitration, mediation, expedited arbitration and expert determination. Respondents indicated that they spent more time and incurred significantly higher costs in court litigation than in arbitration and mediation.

"Results of the WIPO Arbitration and Mediation Center International Survey on Dispute Resolution in Technology Transactions" Full Report of March 2013