Deciding It Privately: Arbitration, Mediation, and the IP Disputes That Never Reach a Courtroom
By Casey Scott McKay ·
Most intellectual property disputes with a contract at their centre end privately, and the choice to arbitrate is usually made years earlier by whoever drafted a clause nobody read. This article works what arbitration actually offers in intellectual property matters and what it costs, starting with arbitrability and the statutory provision that expressly permits arbitration of patent validity and infringement. It then covers clause drafting, tribunal selection where technical expertise matters more than in most fields, the confidentiality that is arbitration's principal attraction here, and the interim relief that is its principal weakness. It closes on enforcement under the New York Convention, the narrow vacatur standards, and when litigation remains the better instrument.
IP and Technology > General IP | Article | Published 2 February 2026 - Updated 4 May 2026 | Casey Scott McKay - marksy.us
Summary. Most intellectual property disputes with a contract at their centre end privately, and the choice to arbitrate is usually made years earlier by whoever drafted a clause nobody read. This article works what arbitration actually offers in intellectual property matters and what it costs, starting with arbitrability and the statutory provision that expressly permits arbitration of patent validity and infringement. It then covers clause drafting, tribunal selection where technical expertise matters more than in most fields, the confidentiality that is arbitration's principal attraction here, and the interim relief that is its principal weakness. It closes on enforcement under the New York Convention, the narrow vacatur standards, and when litigation remains the better instrument.
Keywords: IP arbitration · arbitrability of patent validity · section 294 · Federal Arbitration Act · arbitration clause drafting · institutional rules · tribunal expertise · confidentiality in arbitration · interim measures · emergency arbitrator · discovery in arbitration · award enforcement · New York Convention · vacatur standards · mediation in IP disputes · FRAND rate setting · licence royalty disputes · joint venture disputes · cross border enforcement · arbitration versus litigation
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