How mediation of patent disputes differs from litigation

Craig Metcalf

Patent litigation can be extremely expensive and time consuming. A patent infringement case of even moderate complexity can cost millions of dollars. At the same time, a protracted litigation can damage a company’s business development strategies while important intellectual property rights are expiring.

The outcome of patent litigation is always uncertain. This uncertainty is in part due to the nature of the decision makers. Federal judges do not generally have particular expertise in patents or the technologies covered by patents. Patent cases are triable to a jury. Juries are lay people called upon to decide a complex matter. These factors add to the uncertainty of the outcome of patent litigation.

For these reasons, it is often desirable to seek an alternative to the litigation process. Mediation is a well-accepted means of dispute resolution and an alternative to litigation. The mediation process involves the parties to a dispute engaging an impartial mediator to facilitate a negotiation process. This process differs from litigation in several respects.

Unlike litigation, the mediation process is confidential. Therefore, the parties are more able to explore options and exchange information than is possible in a patent litigation setting. At the same time, the parties may provide information to the mediator in confidence. The proceedings and conduct of mediation itself is confidential and not admissible into evidence in the court proceeding. It is also possible for the parties to enter into agreements to protect important proprietary technical information.

The process is informal and can be easily tailored to the needs of the parties. During the mediation process the parties can meet jointly with the mediator or they can meet individually with the mediator. While it is preferred that a resolution be negotiated in a single session, this is not always possible. Thus, mediation can continue by telephone or in additional in-person sessions as long as the parties are willing to participate. This provides flexibility and allows the parities to conduct additional investigation or develop additional facts as needed to resolve the dispute.

Importantly, mediation brings together all of the parties and the attorneys. This is a unique occurrence during the litigation process. During the litigation process all of the parties will rarely, if ever, be brought together, short of the trial itself. When a mediation is conducted, the parties and attorneys have come together for a specific purpose of developing a resolution of the dispute. Thus, the mediation process tends to gain a momentum not experienced otherwise during the litigation.

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