Litigation over patent infringement is high stakes.
In some cases, a business’s ability to defend its patent against an infringement, or not, will determine whether the business will ultimately succeed or fail.
On the other hand, many firms accused of infringement also have a strong financial interest in defending their actions and avoiding a federal injunction which could grind their business to an immediate halt.
Even if it does manage to stop the infringement, a business will also have to prove its lost profits and other damages.
On the other hand, a firm accused of infringement may want to avoid the risk of a crippling court judgement and injunction by negotiating with its accuser.
Moreover, litigation takes time, human resources and money. Attorney fees aside, a full-blown trial will likely require multiple expert witnesses. Litigation can also lead to unfavorable press coverage and other reputational risks.
Alternative dispute resolution is an option for those who want to resolve disputes
Informal negotiations are one way those involved in patent litigation can resolve their disputes efficiently and in a way that minimizes uncertainty.
Sometimes, though, parties in a dispute will need some additional help with resolving their disagreements. Mediation is one alternative.
To some extent, patent infringement mediation works like any other mediation. The beauty of mediation is that it is a confidential process.
The confidentiality allows parties to discuss the strengths and weaknesses of their cases without having to worry as much about compromising their positions.
Mediation is also a voluntary process. While parties are expected to try in good faith to resolve their disagreements, they are free to walk away.
In other ways, mediation might be a little different in a patent litigation case. The mediator will likely have a background in patents and intellectual property. Experts may also be involved in a mediation.