Patent Mediation Guide

Patent Mediation Guide
Patent Mediation Guide
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Are you looking for information about the patent mediation process?

To an innovator or entrepreneur, mediation is a key component of protecting one’s assets.

Mediation takes many forms. In the business arena of patents effective processing and resolution as well as the reality of the volume of new cases, has become increasingly important to an economy driven by innovation and new products.

In this business reference, you will learn about the litigation process for patent mediation as it relates to dispute resolution and alternative dispute resolution (ADR).

The scope of the cases explored include:

  • Role of each player, including mediator
  • Business decisions
  • Type of case and industry
  • Cost savings
  • Applicable licenses
  • Timing
  • Settlement issues and factors
  • Procedures
  • And more

Mediation can be an effective tool in resolving simple to complex patent litigation. As the volume of patent cases has increased around the country, the number of experienced mediators and parties that have participated in the mediation process has also increased. This guide collects the knowledge of experienced judges, mediators, counsel, and parties to promote cost-effective, time-effective, and constructive dispute resolution.

Appendix A includes Rules by Jurisdiction within different states, the International Trade Commission, and the Federal Circuit.

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Table of Contents

I. The Dispute Resolution Spectrum 1

II. Benefits of Mediation 3

A. Control Over the Process.4

B. Ability to Reach Business-Driven Solutions .6

C. Cost Savings.6

D. Confidentiality 7

1. State Confidentiality Provisions 10

E. Non-Binding Facilitator 10

III. Negotiation Paradigms and Their Determinants 11

A. Understanding the Technology and Value of the Case 12

B. Understanding the Procedural Posture of the Case 22

IV. Strategically Crafting a Mediation for Success 28

A. Matching a Mediator to the Business Issues of the Case 29

B. Attendees32

1. Client Representatives 32

2. Litigation Counsel .33

3. Experts 33

C. Timing 34

1. Conducting Mediation at the Onset of a Case .36

2. Conducting Mediation After Initial Infringement and Invalidity Contentions  37

3. Conducting Mediation After Claim Construction Hearing 38

4. Conducting Mediation After Claim Construction Order 39

5. Conducting Mediation After an Inter Partes Review Filing 40

6. Conducting Mediation After the Close of Discovery and/or After the Court Rules on Summary Judgment Motions  41

7. Conducting Mediation After an Inter Partes Review Determination  42

D. Premediation Submissions  42

Patent Mediation Guide iv

E. Sessions and Duration  43

1. Presession Conferences  43

2. Opening Session  43

3. Mediation Sessions 44

F. Location 44

V. Preparing for Mediation—For Mediators 46

A. Mediation Statement—An Opportunity for Early Case Assessment . 46

1. The Parties, Their Businesses, and Their Dispute History .. 47

2. Infringement Contentions 47

3. Invalidity Contentions 48

4. Claim Constructions 48

5. Financial Information 49

6. Other Information to Be Exchanged 49

7. Addressing Concerns Regarding “Early Discovery” .49

8. Information That Should Only be Provided to The Mediator 50

B. Defining the Format and Structure of the Mediation 52

VI. Preparing for Mediation—For Parties and Counsel 54

A. Obtaining the Necessary Information  54

B. Analyzing the Necessary Information  57

C. Preparing and Educating the Participants in the Mediation 59

D. The Mediation Statement 60

Appendix A: Table of Mediation Rules by Jurisdiction  63

Appendix B: Exemplary Mediation Confidentiality State Provisions. 85


Patent attorneys, large manufacturers and small business manufacturer attorneys, business executives, and compliance officers may be interested in this informative text about the patent mediation process.

Second and third year law students and students pursuing masters or doctorate degree programs in business administration, and compliance practices may be interested in this authoritative work.

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