Prospects for ADR in Patent Disputes: An Empirical Assessment of Attorneys\u27 Attitudes

For the most part, parties with a legal dispute have either settled their differences or, when that wasn\u27t possible, litigated them. However, alternative dispute resolution (ADR) is increasingly urged as a supplement or substitute in a wide range of areas. ADR usually involves at least one third party who is employed by neither the judicial system nor one of the parties to the dispute. The third party may be a mediator, who helps the parties reach settlement, or an arbitrator, who renders a decision. While arbitration has been widely used for many years, until very recently, mediation (or conciliation) was more likely to be confined to labor controversies. Ironically, just as many patent attorneys began to appreciate arbitration\u27s potential for being quicker and less expensive than litigation, a couple of cases created doubts about whether it could be used to resolve issues that are usually central to patent disputes. Notwithstanding these doubts, in 1981 a group of patent attorneys was surveyed to determine, e.g., the extent to which they had been using ADR in intellectual property disputes and were inclined to continue. At the prompting of the Advisory Committee on Patent Law Reform, another survey, using essentially the same questions, was conducted in 1991. Here, we analyze both surveys, focusing primarily on the acceptability of arbitration and mediation for resolving patent disputes