Pros and cons of ADR for intellectual property disputes

Alternative dispute resolution (ADR) can provide a viable alternative to traditional litigation. Common examples include mediation and arbitration. These forms of ADR can save those who are in an intellectual property (IP) dispute time and the expense that comes with taking these disputes into the courtroom.

Is ADR an option for intellectual property disputes?

Yes. In fact, the Northern District of California has a reputation for sending all of its patent cases directly to the ADR program.

What are the benefits of ADR for IP cases?

As noted above, one key benefit is the decreased expense. IP cases can become very costly, very quickly. This is in large part due to the discovery portion of the case. This portion involves gathering evidence to support the claim. IP cases often need testimony from experts and production of documents to help build the case. This can take a great deal of time and money. ADR can also include a more streamlined discovery process. This can include a discussion of potential resolution during the initial phases of the discovery process, instead of waiting until full completion of discovery.

Additional benefits can include:

• Efficiency. ADR can prove particularly valuable as the parties can choose a mediation or arbitration official that has some knowledge of relevant law or the technology at issue. This could further cut the cost and time that comes with finding a resolution.
• Confidentiality. The increased level of confidentiality that comes with the ADR process is also beneficial, as the parties can get into the details of the dispute without fear of the information becoming public knowledge.
• Flexibility. This process is generally more flexible when compared to traditional litigation. During ADR, the parties can agree to almost any resolution. In most cases the only exception are resolutions that would violate law or public policy.

An additional benefit that is particularly relevant during the current coronavirus pandemic is the ability to resolve the dispute remotely. Use of online platforms allow remote meetings and the ability to exchange documents online. This can result in the ability to resolve the IP dispute while remaining contact-free. The benefits of remote negotiations are present even after the government lifts travel restrictions and things begin to return to normal. Many of these disputes are international. As such, the ability to negotiate without traveling to another location remains beneficial.

What are the risks that come with using ADR?

The biggest risk with using ADR is the potential for failure. If the process fails, the parties may find themselves facing traditional litigation — something they were attempting to avoid in the first place.