As a patent attorney in California, you probably recognize that not every case is well suited to litigation. This doesn’t mean that a favorable outcome cannot be achieved. Perhaps that realization is one reason courts and trial attorneys in patent cases are encouraging clients to pursue mediation.
If you have recommended mediation as an alternative to resolving a patent dispute, there are a few steps you can take to increase the chances of success. One step is the selection of a mediator who understands patent law and procedure, the complexities of patent litigation and the technology involved. A mediator who is willing to quickly discern the strengths and weaknesses of the case from the perspective of both the plaintiff and the defendant and then communicate those perspectives effectively can help resolve the parties move toward resolution of the conflict while keeping all parties focused and realistic about their expectations.
The mediator must be able to adapt and adjust throughout the process, reframing issues and positions in a manner to help each side gain understanding of the other’s interests and positions. Unlike many type of cases, mediation of a patent case often takes more than one session before positive progress become apparent. The mediator in a patent dispute must be willing to spend the time and effort to encourage the parties to stay with the process even if several sessions are required.
The time when mediation occurs is another consideration that can have a significant impact on the chances for a successful mediation. For example, mediation may be particularly beneficial after the parties have exchanged preliminary infringement and invalidity contentions and have submitted claim construction statements but before the court has made any claim construction rulings. At that time, the parties have communicated their positions but still have the risk of an adverse decision from the court which may present opportunities for resolution that would not be possible without the realization of that risk.