A high percentage of patent infringement suits are resolved before a trial court decision is handed down, but all too frequently settlement occurs only after protracted, costly and burdensome court proceedings. Many patent infringement cases, but by no means all, are suitable for mediation.

Frequently cited advantages of mediation include:

• The parties themselves solve their problem, satisfying their real interests while maintaining control over the outcome of the dispute.

• Substantial savings in legal fees and other litigation expenses.

• Prompt resolutions.

• Creative, business-driven solutions generally not available in court.

• Privacy and confidentiality.

Given the high costs and burdens of patent infringement litigation, the advantages of mediating such cases can be particularly pronounced; however, numerous factors will have a bearing on how suitable an individual case is for mediation.  Some of the more significant factors are summarized in this article.  It must be noted that mediation will not occur without the agreement of both parties, unless it is mandated by court order.

This article does not deal with disputes arising under patent license agreements, which may include dispute resolution clauses calling for ADR and in any event present different issues. Such disputes are of a contractual nature between parties that have a business relationship and are even more likely to be suitable for mediation than infringement disputes.