Journal Article

The positive rise of the negative declaration

Alex Batteson

in Journal of Intellectual Property Law & Practice

Volume 3, issue 10, pages 633-641
Published in print October 2008 | ISSN: 1747-1532
Published online August 2008 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpn147
The positive rise of the negative declaration

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Legal context

UK IP legislation affords, to a certain extent, protection from abuse in the enforcement of IP rights and, in particular, unjustified threats of infringement proceedings. Outside the boundaries of such protection, declaratory relief may be sought under the inherent jurisdiction of the court.

Key points

The elasticity of such relief has been demonstrated within the last decade, particularly within the copyright and patent spheres. This has been driven, at least partially, by the development of new technologies, and additionally, the increasing recognition by the courts that they are the forums for deciding essentially commercial disputes between businesses, which disputes invariably call for practical solutions.

Practical significance

Businesses that need to clear the path of IP rights that might otherwise restrict their activities will find the law accommodates creativity in the forms of the relief that they may seek from the courts. They are likely to benefit from incorporating commercial considerations within the bases of their claims.

Keywords: In the UK, declaratory relief may be sought under the inherent jurisdiction of the court to provide protection from abuse in the enforcement of IP rights in addition to the remedies available under IP legislation.; Such relief has become increasingly elastic over the last decade, particularly within the copyright and patent spheres, driven, at least partially, by the growing recognition by the courts that they are forums for deciding essentially commercial disputes.; Businesses that need to clear the path of IP rights that might otherwise restrict their activities will find the law accommodates creativity in the forms of the relief that they seek.

Journal Article.  6978 words. 

Subjects: Arbitration ; Intellectual Property Law

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