The costs of defending patent infringement cases are skyrocketing. Hard transaction costs (e.g., lawyer fees, expert fees, e-discovery fees) have never been higher. And the same goes for information costs. Poorly written patents cloaked with the presumption of validity and adjudicated in hostile fora make handicapping even the strongest defense difficult. Summary judgment, once a powerful tool, is virtually unknown in several jurisdictions now popular with patent plaintiffs. Obviously, mediation is a less-expensive option. But an unsuccessful mediation simply wastes more time and money. So, how do you know when your case is suitable for mediation? And how do you maximize the chances that your mediation will yield favorable results?
Here are a few practical considerations that have proven useful over the course of mediating numerous patent disputes, both big and small: