Mr. Kowalchyk is a senior vice president and director at the law firm of Merchant & Gould P.C., in Minneapolis. He practices in the area of intellectual property law, with an emphasis on patent litigation, client counseling and alternative dispute resolution. The views expressed herein are solely those of the author. This article does not necessarily state the views of the firm of Merchant & Gould P.C., or any lawyer or client of the firm.
Intellectual property cases, like most commercial disputes, start out in court but are usually resolved before trial. Given the high cost and protracted nature of IP battles, arbitration and mediation should be seriously considered as options to take control of a dispute when it arises. This article focuses on the key factors to evaluate when deciding whether to arbitrate or mediate an IP dispute.
The vast majority of intellectual property litigation, especially cases involving copyright, patent and trademark infringement claims,1 takes place in the federal courts. Like most cases that set out upon the litigation path, intellectual property cases are most often settled before trial; the number of cases actually tried in court is small. In 2002, for example, slightly more than 7,400 intellectual property disputes were disposed of by federal district courts.2 Less than two percent of these cases went through a trial to verdict.3