Eight Challenges to the Successful Mediation of Patent Cases
Seasoned mediators say that the negotiation does not really commence until the parties reach impasse. The eight impediments to settlement of patent cases on appeal listed by Chief Circuit Mediator Amend in Patent Mediation on Your Horizon? are impasse creators, not settlement preventers. It is helpful to anticipate and guard against some of these impediments (party representatives with full authority not being present for instance) but some of these (contingency fee cases for instance) simply provide a challenge to the mediator. They are not arguments against mediation.
Chief Circuit Mediator Amend identified at the Conference eight impediments to settlement of patent cases on appeal. The impediments are:
the case involves a "troll" (which might be defined as a non-inventive entity with no commercial product that acquires and asserts overbroad patents in an attempt to extort a toll from others) and the defendant company wishes to avoid a "bulls-eye" inviting further litigation;
party representatives with settlement authority are not present for the mediation session;
the party having lost the judgment appealed is reluctant to mediate (although perhaps counterintuitive, because the winning party might seem more reluctant, the cost of rolling the die on appeal may appear small relative to the cost already sunk into the case);
the patent was held invalid (one solution might be to ask the district court to vacate its invalidity holding as part of a settlement award);
counsel is representing the appellant on a contingent fee basis;
an emotional, entrepreneur patent owner appeals a loss and seeks "justice";
a summary judgment of non-infringement is appealed and the plaintiff seeks millions (the "lottery" case); and
a party believes it is entitled to attorney fees or enhanced damages.
