What a substantially long career in intellectual property (IP) has shown me about IP controversies is that when you get into court with any IP controversy, it becomes very expensive for the client. The 2019 AIPLA Report of the Economic Survey shows that the range of costs for a patent infringement suit with $10 million to $25 million at risk, cost in a range of $2 to $9 million with a median cost of approximately $4 million. However, mediation cost less than $100,000 per case on average. For trademark, copyright and trade secret litigation with the same amount of money at risk, the range of litigation costs are not substantially lower. When IP litigation starts, the costs go up almost immediately upon the service of discovery. That is also when the grief begins for your clients. That is why I recommended to all of my clients that we try to settle matters as soon as possible. Not only is the cost of litigation reduced, speed and ease of resolution are enhanced. These are very important factors why mediation should be your preferred method of dispute resolution. This article explores the factors that make mediation, and sometimes mediation in combination with arbitration, a good alternative to IP litigation and shows you how to get to the end of your client’s dispute.

Shortcomings of IP Litigation

In addition to the high expense of IP litigation, there are various factors that make the expense of the litigation go up higher than expected and cause continuing dismay for the parties. For example, delays in the scheduling of a case caused by having your assigned judge having to sit on criminal cases and, in particular, long trials. Cases in which the trial judge is unable to give you a date certain for trying a case and putting you on a calendar list for the start of trial. That factor is always complicated by your list of witnesses, who are highly paid, very busy professionals. In addition, the perceived facts for many of the factors which are used for determining patent, trademark or copyright infringement are often subject to change during the course of discovery and during the course of preparation for trial. Facts and perceptions of not only your case, but that of the opposing party, can change, not only during the course of discovery, but also during trial, witnesses can perform in an unexpected manner. Added discovery may change the length of the lawsuit, the manner in which it is tried and can also change the costs and risks of litigation. Discovery and trial preparation often take a client away from the running of a business from which he/she cannot be spared.

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