Lecture - IP Rights, Courts, And Arbitration: National Strategies And Transnational Issues

Synopsis

To provide effective protection for creativity and investment, intellectual property rights (IPRs) must not only be issued or granted by a government. They must also, when challenged, be enforced. Enforcement occurs in two primary settings: in the context of contractual exchange, as a component of a dispute between contracting parties; and in the context of non-contractual infringement, when the IP owner and the accused infringer are “strangers” to each other. Normally, arbitration is more common in the former setting than the latter. This makes sense, because arbitration is seen as the paradigm private law remedy, requiring the consent of the parties to submit to arbitration instead of court-based litigation. I will discuss this, but also mention two “qualifying factors” that ought to modify the standard picture. The first is the growth of online (web-based) trading platforms, such as Alibaba, Amazon, and eBay. In many cases, though individual buyers and sellers are effectively strangers to each other, the rules of the online platform company may call for arbitration or another form of non-court dispute resolution. The growth of this third type of forum – call it “the IP law of the platform” – will exert increasing influence over IP law; I will discuss the implications. Second, I will address an issue that has worried scholars for some time. As non-court-based dispute resolution becomes more common, there is less and less publicly available case law to help guide the behavior and decisions of buyers and sellers. Whatever the private advantages of arbitration, the public will suffer if there is less and less publicly-accessible guidance in the form of published, freely available judicial opinions. I will discuss various ways to address this issue as well.

Speaker

Robert Merges is Wilson Sonsini Goodrich & Rosati Professor of Law and Technology at U.C. Berkeley (Boalt Hall) School of Law, and a Founder and co-Director of the Berkeley Center for Law and Technology, rated the number one Intellectual Property program among U.S. law schools for sixteen of the past seventeen years, including 2017, according to US News and World Report. He has also been a Visiting Professor at Harvard and Stanford Law Schools. He currently serves as Faculty Director for Advanced Degree Programs and Global Outreach at Berkeley Law.

He has authored or co-authored eight books, including Justifying Intellectual Property (Harvard, 2011), and most recently, Transnational Intellectual Property, published in April of 2018. He has also edited six other books. He is the original author of the most influential and widely adopted patent law casebook in the U.S., Patent Law and Policy (7th ed. 2017). He is also a co-author of the leading casebook on intellectual property, which is also used in many major law schools. He has taught and lectured overseas in Germany, England, France, Italy, China, Taiwan, Korea, and Japan.

Professor Merges has written numerous articles on the economics and philosophy of intellectual property. Several of his articles have been cited in opinions of the U.S. Supreme Court. He is also co-author of the forthcoming casebook, “Transnational Intellectual Property Law,” dealing with the complexities of IP law in and across the three major economic regions of the world: China/Asia, Europe, and the U.S. He has testified numerous times as an expert on IP issues before the US Senate and House of Representatives. He has also consulted with leading law firms and companies including Microsoft, Apple, SAP Software, Eli Lilly, and Honeywell, Inc. In 2008 he co-founded and became a Managing Director of the IP business and investment firm Ovidian, Inc., in Berkeley, California, which was acquired in a successful buyout in 2010. Professor Merges received his B.S. degree from Carnegie-Mellon University, a J.D. from Yale Law School, and Ll.M. and JSD degrees from Columbia Law School.

Chair

Kung-Chung LIU holds LLB and LLM degree from National Taiwan University and a Doctor of Law degree from the Ludwig Maximilian Universitaet (University of Munich). He was a Research Fellow at Academia Sinica, Taiwan between 1992/1-2017/1. In 2003, he was a Visiting Professor at the Faculty of Law of the National University of Singapore and Visiting Senior Research Fellow for the IP Academy of Singapore. Professor Liu has served as one of the founding Commissioners of the National Communications Commission in Taiwan between 2006 and 2007. In 2014/4-15/7, he was a Visiting Professor at the School of Law, Singapore Management University, and the Founding Director of the Applied Research Centre for Intellectual Assets and the Law in Asia (ARCIALA). He is currently the Director of ARCIALA. In addition, Professor Liu has been co-appointed Professor of the Renmin University, China (2017), and of the Graduate Institute of Technology, Innovation & Intellectual Property Management, National Chengchi University, Taiwan (since 2010).

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Jointly organized by the Applied Research Centre for Intellectual Assets and the Law in Asia (ARCIALA) and the IP Academy (IPA)