Mediation may be considered at any time during a patent infringement dispute. And there may be financial benefits to mediation early in the dispute before parties have expended significant monetary resources, become entrenched in their positions or committed to executive management or other stakeholders.
This could be:
- When negotiations have stalled
- Prior to deciding to commence a litigation
- Shortly after the filing of a litigation
- After the filing of litigation, but prior to heavy investment in the litigation, or
- Prior to a Markman Hearing
Conflict by its nature requires time, effort and energy. Patent lawsuits often require significant financial resources to be spent on legal counsel, technical experts and the court systems. Resolution requires an understanding of the risks, costs, timelines, potential outcomes, and goals of the parties.
At times, mediation is only considered when required by a court. By this point each party has made significant investment in the development of their legal positions and may have, at least ostensibly, determined that a trial and possibly an appeal is inevitable and likely necessary to achieve the best outcome.
Parties may also see the disagreement on the patent validity and infringement claims as a stumbling block to an out-of-court settlement. In patent litigation both parties will invest heavily for years to develop these claims and others to ensure they are in the best possible position to be successful before the courts.
While each party may heavily invest in their respective claims, there is no requirement for the parties to come to agreement on the claims filed with the court to resolve those claims out of court.
In mediation the parties can confidentially explore, with the assistance of a mediator, if there are opportunities for the parties to resolve their dispute. Once the parties are communicating, they may find a mutually agreeable way to resolve the litigation. In some cases, multiple mediation sessions are helpful to allow the parties time to investigate the opportunities that arise.
Participating in mediation prior to the investment of significant resources, and before being ordered by a court, may allow the parties to be more open to a mediated resolution.