On Arbitrability Of Intellectual Property Disputes

Intellectual property,as a scarce resource for international competitiveness and innovation of enterprises,is eager to be owned by all countries,enterprises and individuals.As a result,disputes over intellectual property have gradually increased.Thus,many countries,including China,are exploring the creation and improvement of a diversified dispute resolution mechanism for intellectual property disputes.Arbitration,as an alternative to litigation,has been endowed with great expectation of the possibility of resolving intellectual property disputes,but in practice,intellectual property disputes arbitration has been using less while in court intellectual property disputes blowout.Arbitrability is the threshold for the arbitration of intellectual property disputes.Because of the particularity of intellectual property rights and disputes,arbitrability can not be put in a word.This paper classifies intellectual property disputes and explores the arbitrability of intellectual property disputes according to different types of disputes.When intellectual property disputes enter the court on a large scale,there is a backlog of court cases,and the functions of non-litigation procedure such as arbitration are unsatisfactory.Starting from the typification of intellectual property disputes,this paper combines the current difficulties and causes of the arbitration of intellectual property disputes,and finally puts forward some suggestions for improvement.In addition to the introduction,this paper is divided into four parts,the following is an overview of each part:The first part makes a typological analysis of intellectual property disputes.The typification of intellectual property disputes is the key to the discussion of the settlement of intellectual property disputes by arbitration.Firstly,it introduces the origin of the typification of intellectual property disputes;secondly,it analyses the existing classification of intellectual property disputes,namely,three types of classification,which are centered on the object of intellectual property disputes,based on the choice of interests of parties and based on different forms of property;finally,it puts forward the construction of the model of intellectual property disputes in this paper,that is,to divide property and personal attributes into main categories and rectify them,mixed classification criteria supplemented by various forms.The second part is the necessity and feasibility analysis of the arbitration settlement of intellectual property disputes.Necessity analysis starts with intellectual property disputes,and analyses the particularity of intellectual property disputes and their protection,as well as the change of intellectual property orientation as the object of intellectual property disputes.Feasibility analysis focuses on the elaboration of the arbitration system,that is,the international trend of arbitration to resolve disputes and the rationality and inherent advantages of arbitration to resolve intellectual property disputes.The third part is about the realistic predicament of the arbitration settlement of intellectual property disputes and the analysis of its causes.The realistic predicament mainly embodies in three aspects: limitation of arbitration agreement or clause,the small number and single type of cases accepted by local intellectual property arbitration courts,and the limitation of the arbitrability of intellectual property disputes by administrative remedies in China;the analysis of the causes and the corresponding realistic predicament: the deficiency of legislation and the failure of the single-track system mode in which the administrative organs determine the effectiveness of intellectual property rights.The fourth part is to expand the arbitrability of intellectual property disputes.From two aspects of legislation and system: according to the typification model of intellectual property disputes,legislative suggestions are given respectively,that is,to determine the arbitrability of copyright personality disputes,to clarify the arbitrability of intellectual property infringement disputes,and to refine the arbitrability of intellectual property validity disputes;and that the system should be correct in intellectual property infringement disputes.The principle of final confirmation of powers by judicial organs is established.