Enhancing the IP system through Dispute System Design

Abstract The effectiveness of the IP system hinges on effective enforcement, including alternative dispute resolution processes, such as mediation and arbitration. In turn, the effectiveness of the dispute resolution processes used for IP disputes hinges on the overarching system in which they are embedded—a comprehensive structure known as dispute system design (DSD). Most literature on IP dispute resolution focuses on encouraging the use of one or more dispute resolution methods, or on comparing the strengths and weaknesses of these methods. This article seeks to adopt a more systematic approach to dispute resolution, assessing the relationship between IP and DSD. Using the DSD analytic framework, it describes and analyses IP dispute systems, including specialized IP courts, small claims courts and dispute systems set up by IP offices, universities and collective management organizations. We suggest strategies from the DSD theory for designing and improving IP dispute resolution, taking these various contexts into account. Among other things, we argue that challenges such as the underutilization of ADR mechanisms for IP dispute resolution stem from design flaws in IP dispute resolution systems. Finally, we call for a DSD analysis of IP dispute resolution systems and for the integration of DSD principles into these systems