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8 impediments to mediation of patent cases on appeal

by Geoff Sharp

From the blog mediator blah...blah...

Geoff Sharp

An interesting article in the latest Metropolitan Corporate Counsel recording the Federal Circuit Chief Mediator's views on the eight biggest impediments to settlement of patent cases on appeal.

Chief Circuit Mediator James M. Amend says they are:

1. the case involves a "troll" (which might be defined as a non-inventive entity with no commercial product that acquires and asserts overboard patents in an attempt to extort a toll from others) and the defendant company wishes to avoid a "bulls-eye" inviting further litigation;
2. party representatives with settlement authority are not present for the mediation session;
3. the party having lost the judgment appealed is reluctant to mediate (although perhaps counter intuitive, 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);
4. 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);
5. counsel is representing the appellant on a contingent fee basis;
6. an emotional, entrepreneur patent owner appeals a loss and seeks "justice";
7. a summary judgment of non-infringement is appealed and the plaintiff seeks millions (the "lottery" case); and
8. a party believes it is entitled to attorney fees or enhanced damages. The court is in the process of refining the selection criteria for, and the techniques used in, its mediation program to take these impediments into account and improve the program. [read more]


Geoff Sharp is a Commercial Mediator from Wellington, New Zealand. Geoff works in the Asia Pacific region, including New Zealand, Malaysia, Thailand and Pacific Islands. He is a mediator resolving business problems. He is a fellow of the International Academy of Mediators and mediates complex and hotly debated litigation covering a wide range of subject matter from insurance disputes to historic sexual abuse claims.

Geoff is author of the award winning blog mediator blah...blah... a mediation blog experiment in reflective practice and the Mediation vBlog Project, a kind of mediation genome project by video blog.

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Additional articles by Geoff Sharp