:: Mediation Ė Finding Common Ground in Section 337 Investigations
The Commissionís heavy intellectual property-related caseload has focused increased attention on the USITCís Mediation Program, a risk-free, inexpensive, confidential, and quick mechanism to help the private parties to evaluate whether settlement can be achieved in section 337 investigations.
The Commission established the Mediation Program in 2010 (following a two-year pilot program) to provide an alternative means for section 337 litigants to resolve their disputes. Even if complete settlement is not possible, mediation may help narrow issues and claims in an investigation, reducing the burden on the partiesí and the Commissionís resources.
The USITC Mediation Program is modeled on the successful U.S. Court of Appeals for the Federal Circuit Mediation Program. All section 337 investigations are eligible for participation in the program. An ALJ may designate a particular 337 investigation for inclusion in the program, or the litigating parties may individually or jointly request to participate. The Secretary to the Commission manages the program, providing administrative support to the mediators and parties.
The Commission maintains a roster of experienced professionals who serve as mediators. These experts have significant experience in both patent litigation and mediation and have met the Commissionís pre-screening criteria. The Secretary to the Commission assists parties in selecting a mediator.
Mediators provide a single-day mediation free of charge. If the parties agree that further mediation would be fruitful, the mediator is compensated for additional sessions by private contract between the parties and the mediator.
The USITCís Chief Administrative Law Judge requires that parties participate in a mediation session to replace one of three required settlement conferences in proceedings before him. Other judges strongly encourage or order mediation on a case-by-case basis. Parties themselves have demonstrated an increased interest in mediation, often based on an earlier positive experience with the program. Currently, the parties have taken advantage of the Mediation Program in 22 percent of pending section 337 investigations.
Section 337 investigations are most likely to settle at certain points -- after the completion of a Markman hearing, after the filing of trial briefs, and at the conclusion of the trial but before the issuance of the ALJís final initial determination on violation. Thus, mediation sessions before these junctures may provide the best opportunities to reach a mediated settlement. Cases that go to mediation at an early point in the investigation sometimes enter mediation a second time after one of these points.
The Commission is committed to the continual improvement of its Mediation Program and welcomes feedback and suggestions from participants. Commission staff are collecting data to analyze the Mediation Programís impact on settlements and overall agency costs, and they are considering ways to enhance the Program through these efforts.
A Mediation Program section on the USITC web site offers numerous resources to educate and assist potential mediation participants. These resources include a regularly updated brochure and user guide, information on mediators, and electronic forms that allow participants to submit and exchange information. Soon, it will include a formal program evaluation form. To learn more about the Mediation Program, visit the USITC web site, or contact Lisa R. Barton, Acting Secretary to the Commission.