In the recent past, prestigious courts around the world have refused to adjudicate cases relating to foreign registered or unregistered intellectual property rights (hereinafter: IPRs), where the proceedings concerned an IPR infringement claim or where the defendant in an IPR infringement action or the claimant in a declaratory action to establish that the IPR is not infringed pleaded that the IPR is invalid or void and that there is also no infringement of that right for that reason (so called validity issues incidentally raised). In these cases the refusal to adjudicate the foreign IPRs infringement and validity claims was grounded on exclusive subject-matter jurisdiction (exclusive jurisdiction) rules. According to those rules, the State that granted or recognized the IPR has the exclusive jurisdiction to address claims related thereto, independent of its also having personal jurisdiction over the defendant. This paper adopts and develops a thesis according to which exclusive jurisdiction rules in IPRs cases are not suggested by public international law; are actually illegal according to its rules on the denial of justice and on the fundamental human right of access to courts; and therefore, must be abandoned not only with respect to IPRs infringement issues, but also to IPRs validity claims raised as a defense in infringements proceedings, as the majority of the scholars maintain and the most recent academic initiatives like the ALI Principles and the CLIP Project codify.
Intellectual Property Rights and Exclusive (Subject Matter) Jurisdiction: Between Private and Public International Law,
15 Marq. Intellectual Property L. Rev. 357
Available at: http://scholarship.law.marquette.edu/iplr/vol15/iss2/5