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Facilitating Early Information Exchanges to Promote Success in Patent Mediation

Greg Wood Dec. 1, 2022

When a client retains your services to help them work through an ongoing patent dispute, you can do a great deal to facilitate success whether the case goes to mediation or litigation. Increasing numbers of attorneys are learning how to flag their cases as possible conflicts that could be resolved out of court, thus saving clients time and money and giving clients greater flexibility in crafting a resolution that may be a win-win.

One of the most important things you can do as a patent attorney aiding a client in the mediation process is to encourage the early exchange of information. Without such an early exchange, neither party will feel that there is sufficient grounds to even talk much less enter into meaningful negotiations. The early exchange of information gives parties and their respective attorneys clarity about the critical issues of the case and a basis for clarifying their own interests and crafting a rational negotiation strategy.

Failing to cooperation in the early exchange of relevant information can cause delays, increase the distrust that already inevitably exist and even destroy opportunities for resolution. Parties who believe that the other party has information being held back that could influence the fairness of a settlement offer can also encourage that party to stall negotiations and create the risk of a deadlock. Depending on the type of case, there is a wide range of documents or evidence that might be a part of this early information exchange such as licenses, sales data, settlement agreements with other parties, advertising copy, , or contracts. Encourage your client to be forthcoming and submit these in advance to increase the level of trust and so increase the willingness of the parties to engage in meaningful mediation sessions.

For mediation to be productive in patent dispute in California, exchanging information early helps to get to a resolution more quickly and minimizes the delays that can hinder and even prevent settlement of the dispute.