THEME: Mediation and Commercial Law
This article was authored by Nidhi Agrawal from Kirti P. Mehta School of Law, NMIMS
The following essay seeks to analyse the application of mediation in cases of intellectual property right disputes, specifically in the case of disputes involving patent trolls. In a nut shell, patent trolls are non-practicing entities who earn revenue based on patent enforcement or threat of patent enforcement. Litigation directly impacts the bottom-line of an entity due to its cost and time intensive nature and may prove detrimental to the business in certain cases as well. Thus, there is a need for alternative mechanism of dispute resolution in such cases. Mediation is a voluntary process facilitated by a neutral third party to enable the disputing parties in crafting a win-win situation. This essay aims to explore whether mediation is a suitable alternative to the traditional process of litigation which is extremely cost and time intensive. For the aforesaid purpose, the essay covers the following aspects- Firstly, it sets the scope of the term ‘patent trolls’ and how they operate. Thereafter, it discusses the relevance of patent trolls by discussing the background and legal context in which patent trolls developed and continue to develop. Subsequently, the essay discusses the drawbacks of patent litigation. The essay then proceeds to discuss the general advantages of mediation in patent litigation. Following which the listed advantages are then narrowed to apply in disputes involving patent trolls. Then the limitations and barriers to mediation specifically in disputes involving patent trolls are considered. Finally, the suitability of mediation in such cases is weighed against the social interest consideration.
Keywords: patent trolls, mediation, patent assertion entities, costs, patents, intellectual property, disputes.
A patent is an exclusive right given to its holder to prevent third parties from making, using, offering for sale, selling or importing the patented product or process, without the holders’s consent. As a part of the patent bargain theory, the patent holder discloses the innovation to the public at large quid pro quo a monopolistic right for a limited period of 20years to exploit it. Such monopolistic rights are extended with a view to stimulate growth and foster innovation in today’s competitive knowledge economy.
However, with the development of the patent system, not only have patents been used as a tool for excluding others from using particular intellectual property, but also as an exclusive source of revenue. This can been seen with the emergence of a business model wherein non-practicing entities (NPE’s) gather and hold patents solely to extract excessive rents from legitimate third party inventors and/or manufacturing companies, who may incidentally tread on these patents, whilst developing/manufacturing one or more innovative products. Entities that run on such a business model are known as ‘Patent Assertion Entities’ (hereinafter referred to as ‘PAE’), more commonly and pejoratively known as ‘patent trolls’.
Understanding Patent Trolls
Patent trolls can fundamentally be understood on the basis of three distinctive characteristics- viz, (i) their opportunistic nature; (ii) their intention to not practice the patent; and (iii) their revenue model is based on earning licensing fees or settlement under the threat of litigation  and enforcement proceedings. Patent trolls tend to target small research companies, manufacturers, distributors or retailers in certain industries who do not have the funds to engage in litigation, usually firms with turnover less than a $100 million, since settlement is a lucrative option for the patent trolls. Nevertheless, patent trolls all too often target companies with high revenues for catching the bigger fish and greater returns. The cost of lost opportunities for firms operating on a large scale is so significant that it is often more prudent to settle the matter than go through the rigours of litigation.
A classic example of a patent troll in India is that of Spice and Samsung v Ramkumar, wherein a Madurai based engineer deployed his vague dual sim patent to extort excessive sums of money from leading telecom companies such as Samsung, Mirc Electronics and Spice Mobile. Capitalising on the vagueness of his patent, and the power of the custom authorities to seize goods infringing intellectual property rights under Intellectual Property Rights (Imported Goods) Enforcement Rules,2007, Mr. Ramkumar successfully obtained ex-parte orders to restrain these companies from manufacturing, importing and selling dual SIM handsets. Though Samsung and others proceeded with litigation and the Indian Patent Appellate Board eventually revoked Mr. Ramkumar’s patent, a number of technology companies had already paid out huge sums of money to him for settling the matter. 
Background and Legal Context of Patent trolling
As is evident from the above, patent trolls use vague patents to pose as an affected patent holder and abuse the provisions of law to paralyse the day-to-day functioning of businesses, thereby coercing them into meeting its demands. This practice can be seen in other jurisdictions as well.
- Unites States of America
Earlier in the United States of America (hereinafter referred to as US), patent trolls simply relied on the threat of an automatic permanent injunction (granting of which was a general norm in the federal courts) to force licensing agreements or settlements out of court. Later, in the landmark case of ebay Inc. v Mercexchange L.L.C , the US Supreme Court discarded the aforesaid presumption and laid down a four factor test for grant of injunctions viz- (1) irreparable injury to the patent owner; (2) inadequacy of alternative remedies at law; (3) balance of hardships; and (4) public interest. Furthermore, business method patents were affirmed as patentable subject matter under 35 U.S.C. § 101. A business method patent grants a patent over the method of doing business (such as a system of how salespeople should best handle certain customer demands) as opposed to the means of carrying out the business (such as software that tells salespeople how to handle these situations). This generated more opportunities for patent trolls to acquire business method patents and threaten litigation against legitimate companies. 
In addition to this, punitive damages granted by the US courts have a vast potential to overcompensate a patent holder whose patent has been infringed rather than a patent holder who grants a license. This argument is based on the underlying assumption of the courts that the infringed patent was of fundamental value to the product developed and therefore added substantial value to the product of the patent infringer. This, however, ignores the ability of the product developer to avoid using the patented technology had they been approached earlier.
All of the above incentivises patent trolls into staying hidden and waiting for the patent to get infringed instead of entering into a licensing deal beforehand.
In comparison to other jurisdiction, the patent regime in India is not as conducive for patent trolls. Various measures such as non-recognition of business method patents, compulsory licensing, power of courts to grant relief against groundless threats of infringement proceedings and review mechanisms of The Patents Act,1970 act as inherent statutory safeguards in order to protect parties form the menace of patent trolling. Another pertinent safeguard available against patent trolling can be found under section 111 of the Patents Act,1970 pursuant to which the court shall not grant damages or account of profits for infringement if the defendant is able to prove that at the date of infringement he was not aware and had no reasonable grounds for believing that the patent existed. The burden of proof for the same however, is very high. The statutory relief against groundless threats of infringement proceedings is also a significant leverage against the actions of a patent troll. The courts have ruled to the extent that a notice issued by the custom authorities to a person or otherwise calling upon the party to explain its stand on receipt of a patent holders complaint, without determination of infringement by the civil court (prima facie or otherwise) would also constitute as unnecessary illegal threats under the purview of this section. While the declaratory judgements under this section are a positive step towards stopping the trolls, the drawbacks of litigation are still attached to this relief as well. Moreover, the court may neither grant costs of the litigation, nor grant damages despite adjudication in his favour.
While the Patent Act, 1970 in India has relatively greater safeguards against patent trolls, the Intellectual Property Rights Policy of India 2016 favours a rather one-sided perspective on intellectual property, aimed mainly at capturing the “financial value” of intellectual property The policy exhorts to convert all knowledge into intellectual property assets and “zealously protect Intellectual Property Rights”. This could lead to a skewed regime which is conducive for the growth of patent trolls.
Drawbacks of patent litigation
General factors which plague legal systems all over the world, such as overburdened courts, high litigation costs, lengthy process and fear and risk of unfavourable judgements, stimulate the extortionist tendencies of patent trolls.
- Costly Process
The costs for battling intellectual property right disputes are significantly higher when compared to other disputes in commercial law due to the high cost of discovery involved. This is because patents are highly technical in nature and it is difficult to explain the technicalities to judges and juries who may not have the necessary technical background. Thus, additional expenditure is incurred in terms of lawyers’ fees, complex discovery process’, etc in order to simplify and explain the same.
Data availability is a serious challenge for statistical analysis of patent litigation. The available data is sparse and varied.
As per the 2009 economic survey published by the American Intellectual Property Law Association (AIPLA), patent infringement cases where the amount in dispute is between $1 million and $25 million, total litigation costs average in excess of $3 million; where it exceeds $25 million, average total litigation costs are roughly doubled. In smaller cases where the amount in dispute is less than $1 million, the total litigation costs in some cases may exceed the amount at stake, with costs through the end of discovery remaining roughly 60 percent of the total litigation costs.
In a more recent report published by WIPO in 2018, the average cost of patent litigation (excluding the appellate stages) in the U.S. ranges from $1 million to $6 million, and in the UK it ranges between $1 million and $2 million.
Also, the cost of legal representation and experts in most patent disputes conducted in the U.K. is unlikely to be estimated at less than £350,000.
Moreover, in cases of patent infringement in the US, courts have the power to grant upto three times the amount of damages found or assessed in a particular case and in no event less than a ‘reasonable royalty’ for the use made of the invention by the infringer, together with interest and costs as fixed by the court. Thus, the quantum of damages that the losing party may be required to pay is also hefty.
For example, in the case of Polaroid Corp. v. Eastman Kodak Co., Kodak was forced to cease production of a multi-million dollar line of instant cameras and Polaroid received an award of $873,158,971. As rightly stated by Mr. Alan L. Durham, “In no other area of civil litigation are the potential rewards for the victor more abundant or the penalties for the loser more catastrophic.”
Another major challenge of patent litigation is the high cost of lost opportunities. In the current fast paced, competitive knowledge economy, technology is all the more important. The cost of lost opportunities due to time spent in litigation to determine the status of a patent, or to clarify terms in a patent-related contract, may diminish, or even completely dissipate, the value of the patent.
Such high costs and risk can deter many accused infringers from fighting cases in court. It may just be less expensive to pay a licensing fee or royalties than to challenge a patent in court.Additionally, contingency fee arrangements are conducive for the patent troll business model, as they allow institutional investors to effectively spread the financial risk involved in patent litigation by partnering with their lawyers.
- Time Consuming and Lack of Certainty
As per the WIPO report of 2018, the average time for resolution of a patent litigation at the first stage(i.e without any appeals) is eighteen to forty-two months in the US and twenty-four to thirty-six months in the UK. Interestingly, there have also been instances wherein the litigation has lasted for as long as 25 years. As per an informal study on the filing and pendency of patent infringement lawsuits before 5 High Courts in India (viz-Bombay, Delhi, Madras, Calcutta and Gujarat) for the period between 2005 to 2015, it was found that out of a total of 143 patent infringement suits filed, only 2% of the patent infringement cases ended in the delivery of a decree after a trial. As discussed hereinabove, the cost of lost opportunities is very high in the case of intellectual property and therefore time is of the essence in such maters.
Moreover, at the end of the lengthy litigation, while a party may have a favourable judgement against any and all possible challenges, the term of a patent is only 20 years. A substantial or even the entire life of the patent could have been consumed in the litigation.  For example, I the case of Roche v. Cipla, wherein the appellate court found that the defendant had infringed the patent and that the patent was valid, however only three months were left in the life of the patent when the decision was rendered.
Thus, the entire process would go in vain. Alternatively, if the patent holder loses, its patent will be invalidated and it will be left without any rights to practice the invention.
Summarising the above it can be noted that in cases of patent litigation, parties faces severe hurdles in terms of costs, length of the litigation, and high risk, each of which have a direct adverse impact on the bottom-line of the company.
Where does mediation fit into all of this?
Mediation and Patent Litigation
- What is Mediation?
Mediation is a voluntary, party driven process wherein a neutral third party facilitates the disputing parties to reach a mutually advantageous solution which are crafted creatively in order to ensure a win-win situation for the disputing parties. This is in stark contrast with litigation results wherein there is a win-loss situation and the parties have little control over the outcome. Mediation is a confidential process wherein parties can candidly discuss options in good faith, without prejudice to their legal rights.
Suitability of Mediation in cases of Disputes with Patent Trolls
- Advantages of Mediation in patent litigation
As discussed previously, the gargantuan problems of patent litigation are the excessive costs and time-consuming process. Both these birds can be killed with one arrow- being that of mediation since it is a speedy and cost-effective process. As discussed above, a significant component of the high cost of the patent litigation comes from the extensive discovery process that needs to be undertaken in order to simplify the technical nature of patents for the judges and juries. In mediation, the parties can simply appoint an expert mediator who has the relevant technical background and therefore cut on the major cost function of patent litigation. Moreover, mediation is a speedy process as compared to litigation. This not only saves time but also reduces the cost of lost opportunities for the parties which was another component previously discussed.
Also, it is important to note that the costs discussed in the previous section were only relating to litigation at the first stage, that is without the costs attached to appeals. Moreover, the lack of technical expertise of judges and juries may result in uninformed decisions which would require parties to go in appeal. Therefore, finality may not be reached despite incurring such heavy costs of litigation.  Appeals made by the parties in such cases would be an addition to the already insurmountable costs. Since mediation is a process oriented towards creating a win-win situation, in the event that an agreement is reached, both the parties would have their respective needs addressed and therefore there will be finality to the matter and the parties need not incur the additional costs of appeals.
Mediation addresses another concern of parties engaged in patent litigation- confidentiality. Intellectual property disputes in general involve aspects such as trade secrets or proprietary information, such as results of experimentation from research and development which are highly confidential in nature. Although the innovation is disclosed to the public in cases of patented technology, the process used by the accused infringer may still be confidential or have confidential aspects to it. The discovery process involved in litigation may force the public disclosure of such sensitive information and cause irreparable damage to the parties’ business prospects.
Confidentiality is one of the key advantages of Alternative Dispute Resolution processes. As discussed earlier, mediation is a private and confidential process. Confidentiality is protected from all sides. In other words, not only is there no transcript of the proceedings unless otherwise agreed to by the parties, even the mediator is bound by the confidentiality clause and cannot be forced to give testimony in court in respect of the information shared during the mediation sessions.
- Limitations and Barriers to Mediation in cases of patent trolls
While mediation definitely has its advantages in cases of intellectual property disputes, the question is whether it is suitable in case of disputes involving patent trolls.
For the above purpose, it is important to understand the limitations and barriers to mediation in such cases. These limitations and barriers are-
Firstly, since mediation is a voluntary process, the adversarial relationship of the parties may act as a barrier. Parties often agree to mediate a matter due to the interest in preserving an existing business relationship or possibility of creation of a new one. However, since patent trolls are non-practicing entities there is nothing but money to trade and no existing or future relationship to protect and therefore this adversarial relationship may act as a barrier to the voluntary process of mediation.
Secondly entities which have been targeted by the patent trolls may not want to enter into mediation due to certain emotional barriers. On the one hand, certain parties may have the perception that settling with one patent troll will only open the floodgates for attacks by numerous other extortionist trolls, thus making them a bullseye for all patent trolls. On the other hand, some entrepreneurs may perceive patent trolls as thieves who abuse the patent system for personal profit and would not want to settle on account of principle. These emotional barriers may prevent the parties from not only reaching an agreement, but also opting for mediation in the first place. However, small companies and entrepreneurs with limited funds, may not have the luxury to take such a principled approach and thus, is not a significant concern.
Thirdly, mediation may not save substantial costs in such cases. This is because the cost of litigation encourages patent trolls to demand exorbitant licensing fees (not substantially lower than the estimated budget for litigation that a party may have), to which small research companies have no reasonable alternative. Moreover, the benefits of mediation may be reduced in cases of small companies who do not have the resources to even threaten litigation thereby putting them in a very compromising position. Furthermore, since mediation does not necessarily preclude litigation, PAE’s can still use the threat of litigation to drive up licensing fees.
Finally, the benefit of creative solutions that mediation offers is limited in cases involving patent trolls since they are NPE’s and the possibility for value creation through mutual licenses is highly improbable. Despite the aforesaid, some value may be created by an experienced mediator in terms of information sharing in respect of the industry and competitors who use technologies covered under the PAE’s patents. The ethical aspect of such value creation however, is not free from debate.
As listed above we can see that litigation has many drawbacks in the matter of patent disputes and in our search for a better option mediation in matters of patent disputes appears to be a very promising option. As explained above mediation enables elimination/ reduction of all the major drawbacks and deficiencies of the litigation system in matters of patent disputes. Most if not all of the limitations and barriers stated can be overcome with the help of an experienced mediator. Thus, mediation fulfils the private interests of saving costs and time of the parties and hence can be said to be a suitable alternative to litigation.
Another important consideration while analysing the suitability of mediation in cases of patent trolls is the impact of the same in society in general.
Firstly, antitrust problems may arise by resolving patent disputes with the win-win solutions in mediation because private agreements between competitors may act as a barrier to entry for new entrants into the market. 
Secondly, mediation may incentivise the extortionist behaviour of patent trolls. The fundamental drawback of mediation in patent troll cases is the fact that mediation is a process inducing compromise and settlement. The aim of mediation is to arrive at a compromise or agreement by effecting communication between the parties. Therefore, mediation can only be successful in cases wherein the parties are willing to compromise. As discussed at the beginning of the essay, the intention of patent trolls is to extract excessive licensing fees or settlement amounts under the threat of litigation. Thus, by adopting mediation in patent troll cases, parties are emboldening and encouraging such extortionist behaviour. To further add to this dilemma, the legislature has recently made pre-institution mediation and settlement mandatory for all commercial disputes, which includes intellectual property right disputes. Only in the case wherein an ‘urgent interim relief’ is sought or in case of mediation being a ‘non-starter’ will the case proceed without having gone through the process of mediation.
Furthermore, there is a split of views among scholars in terms of the impact that patent trolls have on society. On the one hand, it is argued that patent trolls adversely impact innovation due to the ‘dead weight loss’ to society. On the other hand, scholars argue that patent trolls compensate inventors while purchasing these patents from them and in turn foster innovation and not hinder it. They also argue that patent trolling levels the playing field between small companies that are struggling to compete against corporate giants and therefore there is need for a strong patent system. Since the impact of patent trolls is still a matter of debate, the balance between public and private interest of using mediation and in patent troll cases cannot be ascertained with finality.
Patent trolls or PAE’s are non-practicing entities who acquire patents solely to extract excessive rents from legitimate third-party inventors and/or manufacturing companies, who may incidentally tread on these patents, whilst developing/manufacturing one or more innovative products. Patent trolls use vague patents to pose as an affected patent holder and abuse the provisions of law to paralyse the day-to-day functioning of businesses, thereby coercing them into meeting its demands. Their abuse of the patent system for quick revenues inhibits innovation, contrary to the very aim and objective of developing the patent system.
Despite the negative effects of patent trolls, they are not illegal. Patent trolls follow an extortionist revenue model and certain legal limitations such as erstwhile grant of permanent automatic injunction, business method patents, over-compensatory damages awarded to the patent holder in the US, and a skewed regime that may be created due to the zealously Intellectual Property Rights Policy of India 2016 incentivise their growth.
While the alleged infringers may drag the patent troll to court in order to get justice and protect its own rights, there are significant challenges that the parties must face.
Statistics show that patent litigation is a highly expensive affair. The technical nature of patents lead to high discovery costs. Moreover, the quantum of damages that the losing party may be required to pay is also hefty. Furthermore, the cost of lost opportunities is significantly high and such cost only multiplies due to the time consuming and uncertain nature of litigation. Such high costs and risk can deter many accused infringers from fighting cases in court. It may just be less expensive to pay a licensing fee or royalties than to challenge a patent in court.
However, there is an alternative between the threats of a patent troll and the herculean task of litigation, viz. mediation.
Mediation being an alternative method of dispute resolution counters all the aforesaid drawbacks of litigation and additionally meets the specific requirements of patent litigation such as expert third party and confidentiality. Inspite of its advantages, there are drawbacks and limitations to use of mediation in cases pertaining to patent trolls such as emotional barriers, adversarial relationship, absence of strong leverage with small companies, etc, which are also relevant.
These limitations however, only reduce or curtail the benefits of mediation (if at all) in cases of patent trolls as compared to other intellectual property rights disputes. The impact of mediation in cases of patent trolls can only be determined based on the factors that motivate the parties involved. Therefore, there can be no straight jacket formula to determine the same. Each scenario has its own benefits and drawbacks as discussed above. However, in the sum total of things mediation can be said to be highly advantageous in cases of patent trolls in light of the private interest of parties.
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 Id. at 342.
 Telephone Interview with Peter L. Michaelson, N.Y. Branch Chair, Chartered Inst. of Arbs. (July 15, 2013).
 John Berryhill, Public Interest Considerations in Private Resolution of Patent Disputes, http://www.johnberryhill.com/patdis.html.
 Satyam Rathore & Saurabh Anand, Chambers Global Practice Guide: Patent Litigation 11 (2019), knspartners.com/UploadFile/Articles/02052019_031504_Chambers%20and%20Partners.pdf
 The Commercial Courts Act, 2015, sec. 12A, http://legislative.gov.in/sites/default/files/A2016-4_1.pdf.
 Id. at sec. 2 (c)(vii).
 Id. at sec.12A(1).
 See The Commercial Courts (Pre-institution Mediation and Settlement) Rules, 2018, Rule 3(4) and Rule 3(6), http://legalaffairs.gov.in/sites/default/files/PIMS%20RULES.pdf.
 Bessen et al., The Private and Social Costs of Patent Trolls, Boston University School of Law Working Paper No. 11-45, 6 (September 19, 2011).
 Raymond P. Niro & Paul K. Vickrey, The Patent Troll Myth, 7 Sedona Conf. J. 153,156 (2006).