For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Sunday, 30 October 2011

Confrontation analysis and IP dispute resolution

Confrontation: just a little older than dispute resolution ...
The IPKat has always been interested in all aspects of dispute resolution. Not only has he posted many items that address issues such as litigation, mediation and arbitration, but he has also been involved in the creation and subsequent development of a weblog dedicated to just one aspect of it: the PatLit weblog which tackles patent dispute resolution.

In this post the IPKat hosts some thoughts from his friend and long-time reader Aaron Wood, who is currently a consultant trade mark attorney with Olswang LLP, on a topic to which he has not previously turned his attention: confrontation analysis.  Writes Aaron:
"Confrontation Analysis (CA), sometimes known as drama theory, is a development from game theory; its advocates admit the use of game theory in the conflict stage of a confrontation. The advantage of CA over game theory is said to be that it focuses on the resolution of conflict and the pre-action/negotiation behaviour of parties, to allow them to plan strategies to move towards resolution.
The main creator of the theory was Nigel Howard, a UK scholar who worked for the US for a while devising political strategies to sit alongside military strategies. He died in 2008. Howard's main work on the subject, Confrontation Analysis: how to win operations other than war, is available online here:  it runs to approximately 300 pages.
A number of his papers are also available online here.  
One of the main proponents of Nigel Howard's ideas is former military analyst Mike Young, who runs a company called Decision Workshops. Every so often Decision Workshops holds events that allow participants to experience how the process works.  As well as these materials there is also an online forum, from which it can be seen that Nigel Howard was active until his death in discussing and developing the concept, and that it is now being looked at in a second iteration called DT2 to which Mike Young is a regular contributor.
An interesting point that emerges from the theory is the consideration of vertical relationships in negotiations, including how you make threats credible. Within a military context, this might include considering the position of politicians, the world stage and local commanders to make sure that the strategy deals with all aspects. In an IP context, this might mean creating a strategy which allows an IP counsel to integrate with a company's broader commercial perspectives and also to create local "messages" to go to local associates which confirm the credibility of higher-level threats".
Aaron postulates that there is space for some serious thought as to whether CA has any mileage within IP dispute resolution. It might also be quite instructive to set up a case study by playing CA through a real dispute (at this point the global Battle of the Budweisers and the current Apple v Samsung struggles might be ripe for this exercise, or perhaps a US patent-trolling saga).  The Kat thanks Aaron for raising this topic and wonders what his readers think.  Merpel's a bit more sceptical and wonders whether CA isn't just a fancy dressing-up exercise for something that is often done anyway.

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