WIPO Intellectual Property Mediation Case
By Delilah van Tol
INTRODUCTION
In today’s blog post we are going to look at a case that is solved by ADR, and to be more specific by a WIPO mediator. WIPO stands for the ‘World Intellectual Property Organization’.[1] It is the global forum for intellectual property services.[2] WIPO is a self-funding agency of the United Nations and is located in Geneva, Switzerland.[3]
CASE
In this case[4], a technology consulting company holding patents on three continents disclosed a patented invention to a major manufacturer in the context of a consulting contract.[5] The contract did not state any rights to the manufacturer.[6] At some point, the manufacturer started selling the products in which the consulting company alleged that they infringed its patented invention.[7] The consulting company threatened them with the initiation of court proceedings in all the three jurisdictions where the company is holding its patents.[8]
WIPO
To begin, both parties started negotiating through outside experts about the patent licenses at stake.[9] However, the multimillion-dollar damages sought by the consulting company made an agreement through negotiations extremely difficult.[10] The parties, nevertheless, wanted to solve this dispute and, therefore, they contacted WIPO.[11] WIPO has an arbitration and mediation center, which suggested potential mediators who have the expertise and skills set to resolve these disputes. [12] Both parties agreed upon a mediator.
Before the beginning of the formal procedure, the mediator had contacted the lawyers who represented both parties.[13] This is how the mediator collects relevant information, discusses the preliminary issues, reflects the necessary documents, the tools she/he needs to use during the mediation procedure. . Moreover, it should be noted that the parties have to agree upon the venue where the mediation will be held and it can be a source of debate as well.
When the mediation began, both parties were represented by their directors who had full decision-making powers.[14] This case had a two-day mediation session and in these two days, the mediator had multiple caucuses separate meetings with each party and their counsel.[15] These caucuses are used to show the parties the different outcomes provided with different settlements. Moreover, it is a chance for the parties to show what they actually want, what are their red lines, and how legally weak or strong their positions are. Furthermore, the mediator made clear from the beginning the costs of mediation, which were significantly lower compared to litigation. Lastly, the confidentiality that reigned in the whole process was highlighted.
At the end of the second day, both parties realized that their understanding of the intentions of the other side was incorrect. They discovered that they wanted to cooperate and following a proposal of a party, they reached an agreement.[16] Then, the lawyers drafted a contract that would be the basis for further agreements.
CONCLUSION
Mediation offered benefits to both parties, as they reached an agreement that was not harmful to any of the parties. It was a win-win situation. Moreover, the parties saved a lot of money compared to the scenario of litigation procedures in three different jurisdictions. This was another great example of how ADR can be more efficient in some situations than litigation.
[1]”How a WIPO Mediator Helped Parties to Settle Their Dispute”< https://www.wipo.int/amc/en/mediation/scenario.html > Accessed 01.10.2020
[2] “Inside WIPO” <https://www.wipo.int/about-wipo/en/> Accessed 01.10.2020
[3] ibid.
[4] ”How a WIPO Mediator Helped Parties to Settle Their Dispute”< https://www.wipo.int/amc/en/mediation/scenario.html > Accessed 01.10.2020
[5] ”How a WIPO Mediator Helped Parties to Settle Their Dispute”< https://www.wipo.int/amc/en/mediation/scenario.html > Accessed 01.10.2020
[6] ibid.
[7] ibid.
[8] ibid.
[9] ibid.
[10] ibid.
[11] ibid.
[12] ibid.
[13] ibid.
[14] ibid.
[15] ibid.
[16] ibid.