Patents are the most popular topics for WIPO ADR, followed by IT; trade mark disputes are relatively uncommon. Within this, there has been a shift from pharma to telecom-related patents, even covering FRAND and standard-essential patents. Settlement rates are high (70% in mediation, high in arbitration too). March 2013, WIPO published a survey on patent and copyright dispute resolution covering some 400 respondents. 91% concluded agreements with parties from other jurisdictions; 80% for technology patented in multiple jurisdictions. It has been difficult to attract users to the services
ARBITRARE, Portugal) then took the audience through the services of her organisation, which is competent to resolve disputes ranging from domain names through to industrial property and reference medicines. ARBITRARE offers information, mediation and arbitration services; arbitral awards have the same legal status under Portuguese law as court orders.
Parties are initially invited to participate in mediation in person and while accompanied by their legal representatives. However, participation through Skype is also permitted and, on the two occasions on which it has been invoked so far, it has worked well. The mediation stage is not normally allowed to extend beyond 30 days, though in exceptional cases a further 15 days may be allowed. Mediators are trained and are appointed by ARBITRARE, though the parties are free to appoint a mediator of their choice if they so desire. Proceedings are offered both in Portugal and in English. In terms of statistics, from 2009 to date some 165 proceedings have been filed, of which only 4 have accepted mediation and just one mediation has been concluded.
|An agreeable location for mediation?|
As for its operation, the Center is only competent for mediation and arbitrations of patents falling within the scope of the UPC Agreement: does this include opted-out patents, for which that Agreement provides?
INTA) perspective, Carsten Albrecht (Attorney-at-law and Mediator, FPS Fritze Wicke Seelig) explained the organisation's role, and that of its ADR Committee -- which has 58 members and three subcommittees covering outreach, programming and "neutrals" (which creates documents and materials for mediators and exercises a degree of quality control). Of the 136 mediators on the group's panel, over 80 are from the United States but the number of non-US mediators, and those with capabilities in languages other than English, is increasing. INTA does not provide a physical location and does not lay down the specific rules.
Last year around 450-470 mediations came through INTA with a 70-80% success rate -- which is impressively high. But why are there not more? Is it that mediation is only chosen when litigation is too expensive or where the courts are not trusted? Does it depend on whether it is judicially encouraged or not? Or is it just a matter of cultural tradition? How can we improve the degree of use, Carsten asked: will it involve changing the attitude of the legal profession? Some people appear to equate a willingness to mediate with a concession of weakness, which should not be so.
ECTA), an organisation that is by no means as big as INTA but which still has a sizeable membership -- and an active one. ECTA has a strong institutional commitment to mediation. Fabio decided to look at IP mediation via what he described as a "totally unscientific survey" of around 150 ECTA members. The survey was basically divided into three sections: "mediation yes", "mediation no" and "mediation why".
More or less 50% of respondents had done an IP mediation, though only around 10% had ever considered the mediation service offered by OHIM. While there is a strong aversion to trying something that is brand new, there is also a pull in the opposite direction from people who want to try something because it's new and it's worth giving it a go. Fabio then took the audience through a fascinating array of reasons given and attitudes adopted by those surveys.