Mediation of Intellectual Property Disputes: A Critical Analysis

Abstract:     
Many intellectual property disputes have common features that suggest mediation could provide the parties with a more satisfactory resolution than litigation. However, anecdotal evidence suggests that the number of intellectual property disputes in which parties choose to go to mediation remains low. Although the indiscriminate recommendation of all intellectual property disputes to mediation should be avoided, this article argues that the potential efficacy of mediation for many intellectual property disputes should be more widely acknowledged and could be explicitly mentioned within New Zealand's intellectual property legislation. As Mary Vitoria states: "In very many small to medium cases the point is rapidly reached where the costs incurred are larger than any likely award of damages. To give an extreme example, in one patent case heard in the Patents County Court [UK], the claimant's costs were US$530,000 and the defendant's costs were US$725,000 in what the judge called "a very simple patent case involving one of the simplest patents I have ever seen". Each party's turnover was about US$85,000 per year."

Number of Pages in PDF File: 17

Keywords: intellectual property, mediation, New Zealand

Accepted Paper Series