In our technology-driven world, nothing may be more important strategically or monetarily than intellectual property. Accordingly, the acquisition and assertion of patents have become vitally important to protect innovation and the investment necessary to achieve it, and to create revenue either through the sale of innovative products or the licensing of a patent or a patent portfolio. Patent litigation has become a major factor in this environment, creating high risks and rewards and exposing the participants to onerous litigation expense and significant business disruption. Patent litigation would therefore appear to be a prime candidate for mediation. However, many attorneys and clients remain skeptical of mediation in the patent litigation context. Below are some reasons for this skepticism and suggestions of procedures and techniques to create a successful mediation.
Clients and attorneys who are reluctant to mediate a patent case usually express some or all of the following concerns: The technology and issues are too complex; there isn’t enough time; the mediator won’t really drill down on the complex issues; the mediator will just carry numbers back and forth between the parties; the mediator will just state the obvious.
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