Court, Not Arbitrator, Must Decide Waiver Issue, N.Y. Federal Judge Rules

NEW YORK — The court, rather than an arbitrator, must decide whether a party waived arbitration by participating in protracted litigation of a patent infringement claim before moving to compel arbitration, a New York federal judge has ruled.

On July 21, Judge Ronnie Abrams of the U.S. District Court for the Southern District of New York noted that, traditionally, courts rather than arbitrators have decided claims of waiver of the right to arbitrate based on participation in protracted litigation.

The judge then determined that the movant’s litigation efforts were not inconsistent with arbitration and therefore it did not waive …