Arbitrating an IP Dispute: A Practitioner's Guide to Clause Drafting, Forum Selection, Confidentiality, and Enforcement
By Casey Scott McKay ·
This guide drafts and runs an intellectual property arbitration, treating the clause as the strategic instrument it is rather than as boilerplate. It works the eight drafting decisions that fix forum, expertise, confidentiality, disclosure scope, urgent relief, finality, and enforceability, then the patent-specific provision that permits arbitration of validity and infringement between the parties. The middle sections cover institution and seat selection against the enforcement map, tribunal appointment where a wrong appointment cannot be appealed, and the procedural conference where cost is actually controlled. The last part runs award enforcement and challenge, the multi-track coordination these disputes require, and a clause portfolio audit that is a day's work with disproportionate return.
IP and Technology > General IP | Guide | Published 1 July 2026 - Updated 30 July 2026 | Casey Scott McKay - marksy.us
Summary. This guide drafts and runs an intellectual property arbitration, treating the clause as the strategic instrument it is rather than as boilerplate. It works the eight drafting decisions that fix forum, expertise, confidentiality, disclosure scope, urgent relief, finality, and enforceability, then the patent-specific provision that permits arbitration of validity and infringement between the parties. The middle sections cover institution and seat selection against the enforcement map, tribunal appointment where a wrong appointment cannot be appealed, and the procedural conference where cost is actually controlled. The last part runs award enforcement and challenge, the multi-track coordination these disputes require, and a clause portfolio audit that is a day's work with disproportionate return.
Keywords: arbitration clause drafting · scope and carve outs · section 294 patent arbitration · institution selection · seat selection · tribunal qualifications · arbitrator appointment · delegation of arbitrability · disclosure protocol · confidentiality drafting · emergency arbitrator · interim measures · consolidation and joinder · expert evidence · final offer arbitration · mediation step · award enforcement · New York Convention · vacatur · clause portfolio audit
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