Post-Award Motions

• Author: David A. Allgeyer
• Pages: 105-108

105

Post-Award Motions

The winner of the arbitration hopes issuance of the award will

end the whole thing. The loser probably doesn’t. Lawyers, after

all, are used to a three-part process at trial: verdict, post-trial

motions, and then appeal. There is a natural tendency to try to

recreate that in your patent arbitration.

In fact, there is a lot less the “loser” can do in arbitration

than in court. But there are a few things to consider. Let me

illustrate that with an example.

Assume the hearing in your patent arbitration is over,

the briefs are in, and you receive the award. It is not what you

hoped—not bad, but not great either. You asserted two patents.

The arbitrator found no infringement of the first patent based

on a claim construction that you think is wrong. You are cer-

tain the arbitrator relied on a particular embodiment shown in

the specification of the patent to limit a broader claim term. You

are disappointed because your arbitrator is quite experienced,

having been a patent litigator for twenty years. Still, there it

is. While the arbitrator said in the award he or she was using

the specification to interpret the claim, you are convinced it was

used to limit the claim. While this is a pretty subtle distinction

in some cases, you don’t think it is in yours.

You did prevail on the second patent, but you are a little

disappointed in the amount of damages. While you would have

preferred lost profits on lost sales (who wouldn’t?), you were

happy with the royalty rate. But you think the base is simply

mistaken. This issue was a little confusing during the hearing as

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