Originally from Dispute Resolution Journal

Expense, delay, unpredictability—these are the woes of patent infringement litigation. Lawyers try to persuade lay jurors and judges by over-simplifying complex technologies. But jurors and judges are unpredictable, often producing inconsistent verdicts on similar facts. Unable to accurately gauge their chances of success, parties burn through millions of dollars, only to end up years later with invalid patents or obsolete inventions.1 Often so wasteful, patent litigation can burden inventors and impede patent law’s purpose of incentivizing inventions that benefit society.

Patent mediation is a robust, albeit imperfect, alternative. Patent mediation suits parties because it bypasses the costly and lengthy formalities of litigation, and facilitates flexible, interest-based solutions unavailable in court. Society also benefits as less transactional costs are passed onto consumers. But mediation also enables parties to conceal invalid patents that would otherwise be exposed by litigation, thereby stifling competition and the development of beneficial inventions.

This Article explores the strengths and weaknesses of patent mediation. Part I provides a brief overview of patent law, patent infringement litigation, and patent mediation. Part II argues that patent mediation is cost-effective because it avoids the formalities of litigation, minimizes delay, and facilitates flexible, interest-based solutions. Part III examines the limitations of patent mediation for parties and for society. The Article concludes that patent mediation, though imperfect, furthers patent law’s purpose, and is a robust alternative to patent litigation.