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by
Robert Rose
of Sheldon Mak Rose & Anderson
In 2005, following the lead of the other United States Courts of Appeals, the Federal Circuit initiated a pro bono Appellate Mediation Program. James Amend is the Chief Circuit Mediator, and the program is administered by Wendy Dean, the Circuit Mediation Officer. An overview of the program is published at “Let's Make a Deal: Negotiating Resolution of Intellectual Property Disputes Through Mandatory Mediation at the Federal Circuit,” 6 J. Marshall Rev. Intell. Prop. L. 365 (2007). There are 15 outside volunteer mediators on the panel, who are not in active practice before the Federal Circuit.
Since the panel mediators may still be associated with a law firm, however, the Mediation Guidelines require recusal on any case involving a party which the law firm has represented on appeal in the last five years. Mediators must disclose all potential conflicts, including “issues” conflicts.
The Mediation Guidelines require that at the initial mediation session a party representative with actual settlement authority also attend. This does not simply mean sending a person allowed to accept or offer a minimum or maximum dollar amount. Rather, the party representative has to be a person “who can make independent decisions and has the knowledge necessary to generate and consider creative solutions.” This requirement may be modified or waived by the mediator only if the circuit mediation officers concur and circumstances dictate.
The Federal Circuit posts both quarterly and annual statistics for the program, reported by patent versus non-patent cases. From 2007 to 2008, the overall success rate, measured as the percentage of cases settled that were selected for mediation, rose from 42% to 52%. Patent cases make up most of cases in the program, with 84% of the cases in 2007, and 78% in 2008. The patent case settlement rate rose from 44% in 2007 to 51% in 2008.
For the first half of 2009, however, the overall success rate has dropped back to 42% overall, and patent case settlements have dropped to 31%. Second quarter 2009 patent results look especially dismal at 21%. (Chief Circuit Mediator Amend has identified eight impediments to settlement of patent cases on appeal, which the IP ADR Blog lists here.) Nevertheless, the program’s overall success still compares favorably with other circuits, which report between a 35% and 45% settlement rate.
