ADR and Technology: Conclusion of Jay Taylor Interview
This is the third part of a three-part interview with Jay Taylor, a partner with the Indianapolis, Indiana law firm of Ice Miller. Mr. Taylor's primary practice area is intellectual property law with a focus on patent, trademark, copyright, and trade secret litigation and mediation. He also concentrates in business aspects of intellectual property law such as acquisition, sale and licensing of intellectual property assets, and computer hardware and software sale and licensing.
MS. PYNCHON: Do you believe that the speed at which technology is changing these days should make mediation even more attractive to attorneys handling IP disputes?
MR. TAYLOR: I can tell you that the technology most effecting litigation practice today is electronic discovery. The new rules and case law on that topic are going to make discovery even more burdensome than it already is. And I’ve no doubt it will be abused by some attorneys for the sole purpose of forcing the opposition to capitulate.
Moreover, as technology advances, the costs required for experts to explain the technology in terms the court and jury can understand increases exponentially.
However, it is true that advances in the client’s patented technology often has an impact on the parties’ desire to settle a lengthy case. Many years ago, I was involved in a case involving a patent on controlling pattern stitching on sewing machines. While the case was pending, the technology advanced to the point where the patented technology was obsolete. The new technology was vastly superior and the old patent was worthless. The case settled quickly and reasonably because the whole market changed. This is going to be even more evident in the future as old technology is replaced more rapidly with new technology.
We will always, however, have the trolls with us, who attempt to reinterpret old patents to cover the new technology. Still, in many fields, the valuable life a patent is more limited today than it used to be by virtue of technology’s volatility.
MS. PYNCHON: Do IP disputes have other characteristics that make them uniquely appropriate for mediation?
MR. TAYLOR: I think the primary reasons IP cases and particularly patent cases are particularly good candidates for mediation is the cost of the litigation and the unpredictability of the results. The law itself is always in a constant state of flux. But with the Supreme Court overruling the Court of Appeals for the Federal Circuit on a regular basis in several very significant areas, that flux has increased to the point that very little is certain.
A patent case that may have looked very good several years ago, may now look less appealing because the standards for obviousness have been lowered, or the likelihood of an injunction reduced, or the likelihood of a willful infringement determination due to the failure to product an attorney opinion undermined.
Trademark disputes raise a whole set of other issues. Most often, the goal is an injunction to prohibit continued use of the infringing mark. Damages are usually less of a concern, so money alone is not going to get the matter resolved. Here, creative settlements are a premium and often the only way a trademark dispute can be resolved.
I once had a trademark case where the two clients reached a business settlement in the courthouse hallway as I was picking a jury. That is a case where mediation would probably have produced a comparable settlement much earlier and at much less expense to both sides, but neither the court nor the parties pursued mediation. At that time, mediation was not as widely recognized and practiced as it is today. Today, knowing what I now know, I would push such cases harder toward mediation.
MS. PYNCHON: Are you seeing a marked increase in mediation in your practice.
MR. TAYLOR: Oh, yes. Quite a bit. I am seeing more and more attorneys recognizing the benefits of mediation and counseling their clients to agree to it. Some courts are also beginning to recognize the benefits of mediation and pushing for and implementing rules for court ordered mediation. The Court of Appeals for the Federal Circuit has implemented a mediation program for all cases appealed to that court. Personally, I think that by the time a case gets to appeal, it is too late to mediate. Only time will tell if the program works.
MS PYNCHON: Thank you so much for sharing your experience and insights with us. It’s been very illuminating and education for me. Do you have any parting thoughts?
MR. TAYLOR: Yes, the mantra for the modern businessman should be "mediate, don't litigate." Litigation is costly, time consuming and disruptive for a business. Businessmen want as few uncertainties in their business as possible, and the result of litigation, by its very nature, is totally uncertain. Mediation, on the other hand, provides both sides with an opportunity to resolve a dispute on terms that are mutually acceptable at a cost far less than litigation. If the dispute is one that can possibly be settled, every attempt should be made to do so as early as possible through negotiation, and if that fails, through mediation.
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Les Weinstein, who remains affiliated with the law firm of Shelton Mak Rose Anderson PC while arbitrating national and international intellectual property cases with the American Arbitration Association, was my boss, mentor and teacher more than twenty years ago (yikes!) when we practiced together at Pepper, Hamilton & Scheetz.
