Alternate Dispute Resolution
Currently, parties with IP disputes have no effective means of resolving them. Litigation in the courts can take years and costs millions of dollars (often more than a defendant is worth). In the case of patents, although the US Patent and Trademark Office entertains administrative challenges to issued patents, that process also typically takes years to complete (and the backlog is growing) and often entails expenses that rival litigation costs. Traditional arbitrators and mediators lack IP training or background, and they typically have little or no technical staff and support. In short, there is a huge need for an efficient, reliable, dispute resolution system tailored to the enormous and growing world of IP.
In the 12-month period ending September 30, 2005, the number of IP cases filed in Federal District courts was 12,184, up from 9,590 for the previous year. According to the AIPLA, the cost of IP litigation is even more staggering—the average cost of litigating a patent infringement suit from filing through trial in 2005 was $1.6M. These cost figures do not consider the costs of lost productivity, and the emotional capital expended that distracts management from its primary goal of producing profits for shareholders. Even for the plaintiff, these distractions and costs dictate seeking an early and business-like resolution. Ocean Tomo’s team of ADR specialists is the answer.
Mediation
Mediation uses a neutral (i.e., a Mediator) to assist litigants in finding a resolution that both parties can live with. The process does not produce “winners” and “losers”, it produces a resolution that the parties can live with and an end to the dispute. The Mediator listens to both sides of the dispute, usually in separate caucuses, and eventually can help shepherd the parties into a resolution that the parties might have never recognized (or acknowledged) as a solution to their problem. A case resolved by the courts generally can only include a determination of the damages, if any, that the Defendant owes the Plaintiff. The judge or jury cannot fashion a cross-license deal, an exclusive supplier arrangement, or a standstill agreement; but you can, with the help of a Mediator. The key is having a Mediator who understands your technology, the IP laws, the things that can derail a good case, the surprises that can turn a bad case into a good case, and the skills to use that knowledge and experience to fashion and shepherd the litigants to a resolution.
Arbitration
Arbitration has its genesis in the construction industry when contractors did not want a judge they perceived as having little knowledge of the industry deciding cases. Thus, the parties would agree to select “one of their own” to resolve their disputes. The process was designed to be streamlined -- limited discovery and a quick decision. Arbitration is now used in many industries, and should be ideal for IP disputes. However, traditionally, arbitration has had one major drawback -- there was no appeal from the decision of the neutral (i.e., an Arbitrator). Ocean Tomo intends to provide an option for limited appeal from the decision of the Arbitrator.
Why ADR?
- Only approximately 1.5% of patent cases are tried
- Your case is likely to settle, so why wait until you have spent millions of dollars and untold energy
- What are your ADR options?
- Negotiate
- Mediate
- Arbitrate
- Customized Procedures
- Each has its pros and cons, but the most effective, with you retaining the most control, is typically Mediation
Why Ocean Tomo ADR?
Part of Ocean Tomo’s mission is to work closely with IP owners, advisors and investors in understanding and leveraging their intellectual property assets. Thus, whether you are a Plaintiff suing to prevent infringement of your patents, or a Defendant charged with infringement, you deserve a speedy, fair, well-reasoned, and economical resolution of your dispute. That outcome is far more likely achieved through the use of Ocean Tomo’s team of ADR neutrals. Our neutrals are all technically trained, and experienced IP lawyers who bear scars from the wars of IP litigation. Moreover, they are proven, time and again successful, mediators. Most patent lawyers are engineers, and are trained to find the “right” solution. Ocean Tomo has sought out and found the exceptions -- those experienced patent lawyers/mediators who have proven that they can find many “right” options and have the listening skills and persuasive abilities to get litigants to agree on one of the “right” options as a resolution to their case.
Our IP ADR capabilities derive from the expertise found within Ocean Tomo in the following business lines: