For intellectual property disputes where the parties need a final, private decision without the cost, delay, and public exposure of federal court, arbitration is a powerful alternative. Unlike mediation, where the parties control the outcome, arbitration produces a binding or non-binding ruling from an experienced neutral who serves as a private judge.
Brian Gilchrist is available to serve as arbitrator in intellectual property and complex commercial disputes throughout Florida. Drawing on more than three decades of experience litigating IP cases in federal court, he provides arbitration decisions that are informed, efficient, and grounded in how IP law is actually applied, not just how it reads in a textbook.
What Is IP Arbitration?
Arbitration is a private dispute resolution process in which the parties present their case to one or more neutral arbitrators, who then issue a decision on the disputed issues. The process is structured, it involves submissions, hearings, and a reasoned decision, but it operates outside the public court system, on a timeline the parties can control, and before a decision-maker the parties select.
In binding arbitration, the arbitrator’s decision is final and enforceable, subject only to very limited grounds for vacatur under the Federal Arbitration Act or Florida arbitration statutes. Binding arbitration is often agreed to in advance through an arbitration clause in a contract, or by mutual agreement after a dispute arises.
In non-binding arbitration, the arbitrator issues a decision that serves as an advisory opinion, a realistic assessment of how the case would likely be decided on its merits. Non-binding arbitration is often used as a bridge to settlement: the parties receive an informed, neutral decision and then use it as a framework for negotiating a resolution.
Binding vs. Non-Binding Arbitration: What’s the Difference?
The choice between binding and non-binding arbitration turns on what the parties are trying to accomplish.
Binding arbitration is appropriate when the parties want finality. They have agreed to accept the arbitrator’s decision as the resolution of their dispute, and the award is enforceable in court as a judgment. Binding arbitration produces a definitive result on a faster timeline and at lower cost than litigation, without the public record of a court proceeding.
Non-binding arbitration is appropriate when the parties want a neutral, expert assessment of their case, but are not ready to commit to a binding outcome. The arbitrator’s decision provides each side with a realistic view of their legal position, which often provides the common ground needed to negotiate a final resolution. Non-binding arbitration is sometimes used as a step in a dispute resolution ladder: if the parties cannot settle after receiving the non-binding decision, binding arbitration or litigation follows.
Brian Gilchrist provides both formats, tailored to the specific needs of the dispute and the parties’ agreement.
When Arbitration Is the Right Choice for an IP Dispute
Speed and Efficiency
Federal court IP litigation, particularly patent litigation routinely takes two to four years from filing to trial. Arbitration, by contrast, can typically be completed in a fraction of that time. The parties control the schedule, the scope of discovery is tailored to the dispute rather than driven by default court rules, and the proceedings are focused on the issues that actually matter.
For companies facing uncertainty about their IP rights, products, or business relationships, the speed advantage of arbitration alone can be decisive.
Confidentiality
Court proceedings are public. Filings, testimony, expert reports, and trial exhibits become part of the public record. For disputes involving trade secrets, proprietary technology, sensitive licensing terms, or competitive business information, this public exposure carries significant risk.
Arbitration is private. The proceedings, submissions, and decision are confidential by default are protected by the parties’ arbitration agreement and applicable law. Companies that need to resolve an IP dispute without exposing their most sensitive information to the public record frequently choose arbitration for exactly this reason.
Expertise of the Decision-Maker
In federal court, IP cases are decided by district court judges who are generalists and by juries who have no specialized knowledge of patent claims, trademark confusion standards, substantial similarity analysis, or trade secret law. The outcome depends heavily on how well the parties’ attorneys can present complex technical and legal issues to non-specialists.
In arbitration, the parties select their decision-maker. Choosing an arbitrator with deep IP litigation experience means the decision is made by someone who already understands the legal standards, can evaluate expert testimony critically, and does not need to be educated on the fundamentals of IP law before engaging with the substance of the dispute.
Finality
Binding arbitration produces a final, enforceable award. The grounds for challenging an arbitration award are narrow and limited to fraud, arbitrator misconduct, and similarly exceptional circumstances. This finality is a significant advantage for parties who want to resolve their dispute and move on, rather than face years of post-trial motions and appellate litigation.
In federal IP litigation, it is not uncommon for a trial verdict to be followed by post-trial motions, a Federal Circuit appeal, a remand, and further proceedings. Binding arbitration closes the file.
Arbitration vs. Mediation: Understanding the Difference
Parties and counsel sometimes conflate arbitration and mediation as ‘alternative dispute resolution.’ They are fundamentally different processes.
In mediation, the mediator facilitates negotiation but has no authority to decide anything. The parties control the outcome, if they cannot agree, the mediation ends without a resolution. Mediation preserves the parties’ relationship with the process and keeps all options open.
In arbitration, the arbitrator decides the dispute. The parties present their case, and the arbitrator issues a ruling, binding or non-binding. Arbitration is adversarial, not collaborative. It is closer to a private trial than to a negotiation.
Brian Gilchrist’s practice includes both mediation and arbitration, and he is qualified to help parties understand which process is better suited to their specific dispute. In many cases, mediation is worth attempting first. When mediation is unsuccessful or inappropriate, arbitration provides a private, efficient path to a final decision.
Types of IP Disputes Suited for Arbitration
IP arbitration is appropriate for a wide range of disputes, including:
- Patent infringement claims, including disputes about claim construction, validity, and damages
- Trademark infringement and unfair competition disputes
- Copyright infringement claims, including licensing disputes and ownership questions
- Trade secret misappropriation under the DTSA and Florida law
- IP licensing agreement disputes, breach, scope, termination, and royalty calculations
- Technology transfer and assignment agreement disputes
- Joint venture and collaboration agreements involving IP rights
- Disputes over ownership of employee inventions or contractor-developed IP
Arbitration is particularly well-suited when the parties have an existing arbitration clause in their contract, when confidentiality is a primary concern, or when the parties want a decision from someone with genuine IP expertise rather than a generalist judge or jury.
Brian Gilchrist as IP Arbitrator
Brian Gilchrist brings the same combination of substantive IP expertise and procedural credibility to his arbitration practice that has defined his mediation and litigation career. More than thirty years of IP litigation experience in federal courts, across patent, trademark, copyright, and trade secret matters, provides the foundation for arbitration decisions that parties and their counsel can respect and rely on.
He is a Florida Supreme Court Certified Circuit Civil Mediator based in Orlando, with a practice focused exclusively on intellectual property and complex commercial disputes. He is available to serve as sole arbitrator or as a member of a three-arbitrator panel, for binding and non-binding engagements, in disputes governed by AAA, JAMS, ICC, or ad hoc arbitration rules.
Contact Brian Gilchrist to discuss an arbitration engagement.
Serving Orlando, Central Florida, and Statewide
Brian Gilchrist’s arbitration practice is based in Orlando, Florida, and serves parties, IP attorneys, in-house counsel, and companies throughout Central Florida and statewide. He regularly serves parties in Tampa, Miami, West Palm Beach, Fort Lauderdale, Sarasota, Melbourne, Fort Myers, Ocala, and Tallahassee. Dedicated location pages for these markets are coming soon.
Both in-person and remote arbitration hearing formats are available.
Call 407-841-2330 or email bgilchrist@allendyer.com to learn more.
Frequently Asked Questions About IP Arbitration
Q1. Is an arbitration award enforceable in court?
Yes. A binding arbitration award can be confirmed as a court judgment under the Federal Arbitration Act or Florida’s arbitration statutes, making it fully enforceable like any other judgment. The grounds for challenging a binding arbitration award are very narrow and limited to fraud, corruption, arbitrator misconduct, or an award that exceeds the arbitrator’s authority. This narrow review standard is part of what gives arbitration its finality advantage over litigation.
Q2. Do we need an arbitration clause in our contract to use arbitration?
No. While many parties agree in advance through an arbitration clause in a licensing agreement, employment agreement, or other contract to arbitrate future disputes, parties can also agree to arbitration after a dispute arises, by mutual agreement. Post-dispute arbitration agreements are common and fully enforceable. If your contract already has an arbitration clause, its terms will typically govern the arbitration process, including the rules, the number of arbitrators, and the seat of arbitration.
Q3. How long does an IP arbitration typically take?
The timeline depends on the complexity of the dispute and the parties’ agreement. A focused, single-issue arbitration; for example, a licensing royalty dispute can often be resolved in a matter of months. A full patent infringement arbitration, with claim construction, validity, infringement, and damages issues, may take longer. In either case, the timeline is substantially shorter than federal court litigation. The parties and the arbitrator set the schedule collaboratively at the outset.
Q4. Can we choose what rules govern the arbitration?
Yes. Parties have broad freedom to choose the rules that will govern their arbitration, the American Arbitration Association (AAA) Commercial Rules or Patent Rules, JAMS Comprehensive Rules, ICC Rules, or a fully customized set of ad hoc rules the parties agree on. The choice of rules affects the scope of discovery, the process for selecting arbitrators, and the procedures for hearings and briefing. Brian Gilchrist is available to serve under any of the major institutional rule sets or under ad hoc rules the parties design.
Q5. Is IP arbitration appropriate when there is an ongoing business relationship?
It depends. Arbitration produces a final, adversarial decision, which is appropriate when the parties need resolution and finality. Mediation, by contrast, is better suited to preserving a business relationship, because the parties craft the outcome together and maintain control over the terms. In many IP disputes involving ongoing business partners, licensing relationships, joint ventures, co-existence arrangements, mediation is worth attempting first. If mediation is unsuccessful, arbitration provides a private, expert alternative to litigation. Brian Gilchrist can help parties evaluate which process is right for their situation.