Mediator Medium: Can mediation protect patent settlement licence negotiations from later discovery in the US?

Patent litigation is time consuming, expensive and sometimes of crucial importance to the parties involved.

Patent cases almost always settle. These characteristics make mediation, and its near ironclad confidentiality protection, a potentially attractive tool for the parties and counsel to efficiently resolve their patent disputes. Under a perhaps unlikely scenario, however, prior license/settlement negotiations may become relevant to the issue of what is a reasonable royalty under the patent damages statute in subsequent patent enforcement actions against third parties. Parties and counsel will want to keep in mind that the strong confidentiality protections of mediation may, in these circumstances unique to patent cases, be narrowed by court order.

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Intellectual Property Magazine