Top Ten Ways to Effectively Manage IP Conflict Resolution
Here's a must read article for anyone involved in or representing a client prosecuting or defending an intellectual property action -- Developing a Coherent Strategy for Managing Intellectual Property Disputes by Milbank, Tweed, Hadley & McCloy LLP located at Point of Law. In addition to the links (above) I'm providing you with Milbanks Ten Strategic Points and excerpts of the article on those matters critical to the the negotiation of a winning settlement.
First the points:
- Develop A Business Strategy
- Choose The Right Location For The Dispute
- Carefully Manage The Issues
- Pursue "Early Exit" Strategies When Appropriate
- Don't Underestimate Your Opponent
- Recognize and Understand Weaknesses In Your Case
- Fully Utilize Internal Resources
- Take Control Of Disbursements
- Carefully Review Billing Statements From Outside Counsel
- Choose The Right Litigation Team
Business Tactics and Early Exit Strategies
As Milbank stresses,
too often companies get caught up in "winning" the litigation and don"t explore business solutions to the dispute. You should have definite business goals established as early as possible and should revisit those goals often as the case progresses, looking for opportunities to resolve the dispute in a way that achieves the business objectives.
These business considerations should be front and center at all times so that you're able to derive the maximum benefit from the timing of settlement negotiations. Milbank counsels that
your legal team should also be looking for opportunities to bring the case to an early favorable conclusion . . . [T]here may be business opportunities to settle a case. For example, the defendant may have IP that could be cross-licensed to the plaintiff or a supplier relationship could be established that benefits both companies. Often IP disputes can be resolved such that both companies benefit, but such opportunities must be uncovered and pursued.
These may seem like obvious points, but we do tend to lose sight of these business concerns as we fight to win the litigation with strategic discovery battles, early summary judgment motions, and the like.
Settlement Team Anyone?
For any litigation with an amount in controversy exceeding five million dollars, we recommend the creation of a settlement team within the firm that is litigating the case. The settlement team can and should place its entire focus on potential business opportunities that could be synergized with the ebb and flow of litigation sucesses and reverses.
This team should also keep close track of all corporate and/or commercial/financial market events that might weaken one's adversary's appetite for continued pursuit of the dispute. This enables the client to make strategic timing decisions -- convening a mediation or settlement conference, for example, just after one's opponent has experienced a shake-up in top management or prior to a merger or major acquisition. Transactional counsel within the firm in which the trial team is working may be best positioned to serve as "settlement" counsel throughout the litigation.
