LS&HC Horizons 2022 - Flipbook - Page 45
Hogan Lovells | 2022 Life Sciences and Health Care Horizons
45
Patents, Litigation, and Beyond
Using arbitration to protect IP rights within life sciences and health care
International arbitration is becoming more popular in resolving
disputes in the life sciences sector in recent years. Disputes have
been driven by increasing medical demand, accompanied by growing
profitability for the industry’s players, and a proliferation of crossborder collaborations between these players. Many life sciences
disputes concern Intellectual Property (IP) rights, which are one of
the most valuable assets of these companies.
Arbitration, unlike litigation, allows the parties to retain more
control of the process, including the choice of an arbitrator with
expertise and familiarity with IP disputes and the life sciences
industry. The ease of enforcement of arbitral awards, coupled with
confidentiality of the arbitral proceedings, are also particularly
attractive since IP disputes invariably involve trade secrets or
sensitive information. Further, arbitration can unify applicable
law in contracts with different contracting parties and thereby
avoid parallel court proceedings in different jurisdictions, which is
common in patent litigation.
James Kwan
Partner, Hong Kong
Zoe Dong
Senior Associate, Hong Kong
Jessie Wong
Associate, Hong Kong
Life sciences companies should bear in mind investment treaties
when structuring cross-border deals involving valuable IP rights.
These often refer disputes to arbitration. Planning ahead based
on what treaties are in place in the targeted jurisdiction is key in
protecting IP rights. In one case, a pharmaceutical company forced
an Eastern European state to settle a dispute relating to generic
versions of its star-drug by bringing arbitration under the relevant
Bilateral Investment Treaty (BIT). Another pharmaceutical company
was able to bring an arbitration under a BIT with a Latin American
state in order to protect its patent rights, which were not being
adequately recognised by that state’s domestic courts.
