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Here is the Latest on the Patent Mediation Task Force

CPR’s Patent Mediation Task Force has three events on tap for 2013 that will provide a public focus on the group’s new work.

By December 18, 2012

The task force was formed two years ago to examine mediation use in patent disputes. Chaired by MannySchecter, who is IBM Corp.’s chief patent counsel, the task force has been building on the work of CPR’s International Commission on Patent Disputes, and the Information Technology Conflict Management Committee, which together published a CPR Master Guide to Patent Mediation in 2006.

A breakfast meeting and two conference panels constructed by the 27-member task force expect to discuss its “Effective Practices Protocol,” which the task force has had in development.

The EPP, based in part on focus group investigations, will promote patent dispute mediation. The EPP will rely on the work of three subcommittees: pre-mediation issues; mediation process, and “Unique Issues in Patent Cases.”

The protocol is due to be released this year. It is comprehensive in its list of patent mediation process issues. The task force has collected data and is analyzing the need to educate parties about the mediation process; overcoming the myth that mediation participation is a sign of weakness; using early case assessment and decision trees; getting mediation started, including analysis of mediator selection, mediation timing, and the relationship between litigation discovery and mediation; investigating the process itself, including the use of opening statements, the duration, caucuses, the litigator’s role, and settlement authority; and the participation of “non-practicing entities,” including firms that acquire patents “for enforcement for profit using various strategies,” the task force materials state.

The focus group meetings organized by the task force subcommittees included interviews and conferences “with a wide range of participants in patent litigation and mediation, including in-house patent counsel, outside patent litigation counsel, mediators, judges and former judges and representatives of non-practicing entities,” according to task force materials.

The task force expects to kick off its efforts with a breakfast meeting at CPR’s Annual Meeting to be held this month on Saturday Jan. 19, from 8:00 a.m. to 9:30 a.m. The breakfast will be an open discussion of the focus group findings on improving mediation practice. (See www.cprmeeting.org for last-minute registration information.)

Next, task force members will conduct a panel on Tuesday, Jan. 29, at the Association of Corporate Patent Counsel 2013 Winter Meeting in Orlando, Fla., at the Grand Floridian hotel. The ACPC is a 46-year-old Minneapolis-based membership association of chief intellectual property counsel of U.S. businesses. ACPC was created in 1966 to promote high quality legal services in intellectual property including patents and related fields. For conference information, visit www.acpcnet.org.

In April, task force members will appear at the 28th Annual Intellectual Property Law Conference, in Arlington, Va., at the Crystal Gateway Marriott. The conference is sponsored by the American Bar Association’s Section of Intellectual Property Law. For that protocol-focused program, the task force provided the following description:

Mediation is underutilized in patent disputes. [CPR] formed a task force to explore ways to improve the use of mediation in patent cases. The task force received comments from stakeholders that included in-house and outside counsel, mediators, former judges and NPE representatives. It has synthesized this information to develop an “Effective Practices Protocol.” Attendees will learn to identify and overcome barriers to mediation in patent disputes resulting in more successful mediations, more satisfied clients, and more savings of time and money for clients.

In addition to IBM’s Schecter, who is based at the company’s headquarters in Armonk, N.Y., task force members scheduled to appear on the AIPLC conference panel include moderator Suzanne Nusbaum, of Los Gatos, Calif.’s Agency for Dispute Resolution; Harrie Samaras, who heads her own ADR-focused law practice in West Chester, Penn., and chairs the task force’s pre-mediation subcommittee; CPR President and CEO Kathy Bryan, a publisher of this newsletter; John M. Delehanty, a New York office member of Mintz Levin Cohn Ferris Glovsky & Popeo, who is the chair of the Unique Issues in Patent Cases subcommittee, and Kevin Casey, a partner and chairman of the Intellectual Property Group at Stradley Ronon Stevens & Young, based in the firm’s Malvern, Penn., office, who chairs the task force mediation subcommittee.

Please watch www.cpradr.org for the EPP’s official release date; the protocol will be available in multiple print and electronic platforms.

Now available: the task force’s first official offering, a June 2011, New York Law Journal article, by Manny Schecter and Kathy Bryan, “Patent Cases Need Early Resolution. Here’s How,” is available here: http://bit.ly/Uo4MTB.


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