Should Our Contract or License Provide for Arbitration?

• Author: David A. Allgeyer
• Pages: 1-8

1

Should Our Contract

or License Provide

forArbitration?

Arbitration can provide significant advantages for patent dis-

putes. Patent cases are among the most expensive cases to

litigate. A number of things make them expensive. There is

normally a need for highly qualified technical and financial

experts. Evaluating and gathering facts regarding the validity

and infringement of patents is often time consuming and com-

plex. The typical approach to litigation in these cases involves

significant amounts of discovery to “leave no stone unturned.”

The claim construction process is often elaborate. And proving or

disproving damages can be fact intensive and expensive.

Presenting the case is an art, particularly if there is a jury.

You will typically need a “story line” to keep the jurors’ attention.

Often, difficult legal, scientific, and technical concepts need to be

explained to people typically not used to dealing with patents

and technical issues. You may need a jury consultant to help you

develop good themes and explanations. At the same time, you

need to be sure to have the right kind of technical information

in the record to prove or disprove infringement, address the test

for patent invalidity, and meet all the legal requirements of the

claims or defenses. Jury instructions must be carefully crafted to

explain patent law to folks who likely have never been exposed

to it.

CHAPTER 1