IPO has just relaunched its mediation service to help businesses and inventors resolve IP disputes. That’s good as far as it goes, but the jury will be out for some time on whether mediation can do much to help individuals and SMEs prevent unauthorised use of their inventions. The patent system in particular makes it all too easy for large companies to ride roughshod over the IP rights of anyone without the bottomless pockets needed to contemplate litigation, so mediation may prove little more than a sticking-plaster solution.
The key text of the announcement from IPO is:
Today, 21 March 2013, the IPO is launching a modernised mediation service which will offer a greater variety of mediation options (including short telephone sessions), a wider range of specialist accredited mediators and a more flexible fee scale. In addition, the IPO will improve awareness of the service and the benefits of mediation generally and will also continue to highlight other mediation providers.
The revised mediation service will help to make it quicker and cheaper for businesses to resolve their IP disputes and will complement the reform of the Patents County Court, further improving access to justice.
For more information on mediation and how the service will work, including the new fee scale, please see here.
How does mediation work?
To paraphrase the IPO website, mediation is a form of alternative dispute resolution that either avoids the need to go to court, or better prepares the ground if litigation still proves necessary. It allows opposing parties to discuss the dispute separately with an independent mediator, who will help find a solution acceptable to both parties.
Mediation can help inventors and businesses resolve disputes about patent or other IP right infringement, invention licensing, trade marks, patent entitlement (for example, whether a co-inventor was an employee or consultant), and copyright licensing.
There is a flexible fee scale (see below) that starts with phone mediation and looks highly reasonable compared to the eye-watering costs of IP litigation, so it shouldn’t stretch too many budgets.
Before anything can happen, both parties must sign an agreement that includes sharing the costs of mediation. If agreement is reached, the mediator can help record in writing ‘at least the main points of the agreement’ to reduce the risk of further disputes arising about what was agreed.
From an inventor’s or small company’s point of view, everything depends on the opposing party agreeing to engage in mediation at all. In the case of an inventor versus a non-UK infringer, or a corporate too used to getting its own way, we think the chances are not good that mediation will be accepted. That may severely restrict its effectiveness.
We think IPO and government could do much more to help level the playing-field for inventors and innovative SMEs. None the less, the mediation service is there to help and it’s much better than nothing. We’d be interested to hear about the experience of any inventor who uses the service – particularly if it proves as good as its promise, and actually helps resolve a dispute.