Kevin M. Lemley


This article will discuss alternative dispute resolution in intellectual property disputes. A conceptual approach will be applied in an effort to better formulate the parties’ strategies towards litigation or alternative dispute resolution. Alternative dispute resolution (ADR) is a maturing area of the law, and its application to intellectual property disputes is complicated.1 These complications make any analysis difficult to organize. This article will discuss the underlying components of ADR and intellectual property disputes in a step-by-step fashion. Part I of this article discusses intellectual property rights and presents two conceptual interests underlying these rights. Deciding whether to litigate or pursue ADR demands a thorough understanding of what legal rights are in dispute. Part II focuses on the remedies available to intellectual property owners (potential liability to infringers) to effectively ascertain the “prize” of the dispute. Part III provides background information on various forms of ADR as well as the Alternative Dispute Resolution Act. This section will serve as guidance for later sections, primarily the proposal in Part V. Part IV analyzes the advantages/risks calculi for intellectual property owners and infringers in proceeding to trial or pursuing ADR. Part V presents a sophisticated proposal for dispute resolution in intellectual property disputes. Part VI discusses the effects of this proposal. The conceptual approach focusing on the parties’ underlying interests offers a pragmatic solution to the litigation/ADR dilemma. In this article, one crucial issue concerning intellectual property disputes emerges: the parties’ interests often align. With this realization, a system of ADR better serves the parties’ interests and creates tailored solutions to their complicated disputes.