Faced with millions of dollars in potential fees, the uncertainty of a jury verdict and the prospect that it could be overturned by the Federal Circuit, parties are increasingly turning to mediation as a means of resolving patent litigation at an early stage in the proceedings. This is both by their choice and in many instances required by most courts as a prerequisite to trial.
Despite the widespread use of mediation for patent litigation matters, results and satisfaction with the process have been mixed. Very little has been written about what makes patent mediation unique and what the participants might do to improve its effectiveness.
The Sedona Conference Working Group 10 Commentary on Patent Litigation Best Practices Chapter on Patent Mediation will be useful to anyone that selects mediation as a process to resolve their patent dispute, and presents a series of best practices covering topics such as:
• the timing of making a decision to mediate
• the process of selecting a mediator
• the task of preparing for a mediation
• the unique issues of confidentiality in patent mediations, and
• the conduct of the mediation session itself.
Each Sedona Conference publication is produced from the collective wisdom and experience of members of all stakeholders in the patent litigation system, including the judiciary, the plaintiffs and defense bars, patent prosecutors, and in-house counsel representing various types of industries. The Sedona Conference’s Working Group Series output is first published in draft form and widely distributed for review, critique, and comment, including in-depth analysis at Sedona-sponsored conferences. Following this period of peer review, the draft publication is reviewed and revised by the Working Group taking into consideration what is learned during the public comment period.
Please download and review the WG10 Mediation Chapter in both .pdf and Word formats here and send comments to [email protected] by November 1, 2016. This is an essential part of the process in making the Sedona Conference commentaries true consensus and non-partisan documents representative of the viewpoints of all stakeholders in patent litigation today, so please lend the patent litigation community your time and expertise!
Roderick M. Thompson, Farella Braun + Martel LLP ([email protected])
Mark Wine, Orrick, Herrington & Sutcliffe LLP ([email protected])
WG10 Mediation Chapter Editors
Jim W. Ko ([email protected])
Sr. Program Attorney
The Sedona Conference
