Arbitrating the Patent Case Part XXVII: The Big Picture (Finally)


In this series of articles, we have been considering patent arbitration.  We began with what types of patent-related cases are most suitable for arbitration.  We then considered whether arbitration was likely to be a good idea in a given context and, if so, how to most effectively assure the case will be arbitrated.  We then looked into the arbitration process itself, from the demand through the hearing, and on to the award and enforcement of or challenges to the award.  We covered a lot of ground and considered many details of the process.

It’s not that complicated

But I am a little concerned that, by devoting many articles to procedures, details and possible issues, I may have created the impression that patent arbitration is as complicated as patent litigation.  I hope not, because it isn’t.

The real advantage of patent arbitration is that it avoids complication.  Done right, it provides an efficient and effective way to resolve patent disputes in a way that allows you to focus on the merits of the situation rather than procedural wrangling and motions.

Getting to the merits

And that’s the real key here.  In a typical patent arbitration, done right, will spend about ten percent of your energy and time on the procedural aspects of your case and the rest on the merits.

If the critical thing in your case is claim construction, for example, you should be able to use the flexibility of arbitration to focus time and energy on that.  I recently had a patent arbitration where claim construction was critical.  One construction would mean royalties would be due. The other would mean no royalties were die.  So we focused our discovery and presentation on that and resolved the case on that basis.  The case was important, but did not involve millions of dollars.  Focus on the key issues and resolving the case efficiently was just the right thing to do.

The crucial issue in your next dispute may be patent validity, proper interpretation of a license agreement, or whether royalties were properly computed and paid.

Working with an experienced arbitrator well-grounded in patent law, you can focus your discovery and energy on what is important.

Or it may be that you need the whole panoply of procedures including infringement charts, claim construction, invalidity contentions, damage reports, etc.  If so, guided by the supplementary patent arbitration rules, you can accomplish all that too. But you will not have to wait in line behind criminal cases and all the other matters going on at a crowded courthouse.

The point is, if you have a well-drafted arbitration clause, pick a skillful arbitrator, and provide useful input to help create a process that makes sense, you will be able to focus on the real issues in the case.  Then you can stop worrying about procedural concerns and get to the merits of the case.

Good case preparation and presentation remain critical

That is not to say that you don’t need to present a good case.  You will need to analyze the matter and do whatever you must to gather the right facts, create cogent legal arguments, and present the case in a convincing way.  You’ll still need to prepare witnesses, present critical exhibits, do thoughtful cross-examinations, present good arguments, and do all the things you do in any other case.  But you can normally forego the many procedural motions and focus on the case itself.

You will be able to concentrate primarily on presenting your case to someone who has spent years analyzing disputes like yours. This allows you to work at a sophisticated level.

And that is one of the real advantages of patent arbitration.