THEME: Mediation and Commercial Law

This article is authored by Uditanshu Mishra and Prakhal Agarwal from NLUJA, Assam and NLU, Delhi.

ABSTRACT

A country like India which has multi-cultural and distinct linguistic characteristics, has been in a constant state of evolution since time immemorial. The indigenous people have been putting all the efforts to be at par with the changing needs of the society. The methods of dispute resolution have also varied from time to time. With technology being at its apex, boundaries of countries have turned meaningless in terms of connectivity. Abundant usage of internet has made people explore and acquire knowledge in the fields of transactions and e-commerce. This has led to the emergence of disputes in the area of virtual sale in several forms such as domain disputes, copyright disputes, trademark infringement, patents, defamatory writings, privacy infringements, frauds, etc.

Presently, Intellectual property rights have become the need of the hour as people across the world have been doing cross border transactions that leads to business collaborations between people of different backgrounds and different national laws. Same happens between people of different states in India. Some transactional disputes are bound to create a multi jurisdictional recourse to it. Such entities having accessibility to Alternative Dispute Resolution and specifically to mediation may be able to resolve their disputes in an efficient manner.

As dispute resolution to such commercial mechanism could be pretty expensive if a formal legal setup is taken into consideration, mediation can be an easy solution to the parties involved in such intellectual property disputes. WIPO as an organization has been playing a pivotal role in bringing mediation to the forefront whenever there is a dispute involving intellectual property.

The researcher through this essay has tried to answer several questions related to scope, extent and practicality of mediation in both Indian and global terms. The researcher has also stated the reason for writing on this particular theme.

INTRODUCTION

One aspect that Indians must acknowledge is that the British rule has given us many robust laws, a significant amount of which are still in existence. The evolution of courts system in India has served its own merits and demerits. In most cases, the courts systems lead to several years of waiting before justice is awarded. The clients have to pay hefty amounts to their respective litigant and courtroom.

Arbitration too was no less, and the credit for the same goes to the Ad Hoc version adopted by lawyers drafting their client’s contracts. With no institution to keep a check on their schedule, arbitrators tend to become masters in their own way, leading to no effective solutions. The Arbitration and Conciliation Act has not helped much as the Supreme Court has rolled back limited grounds of appeal by opening to consider the term ‘Public Policy’ in a broader perspective, which is one of the few grounds on which an award can be challenged under this Act.

Mediation as an alternative dispute resolution process, has reached great heights in the recent years. The Mediators are supposed to act as neutrals, while both the parties sit on the mediation table in order to reconcile before they proceed to arbitration or litigation. A dispute is ‘lis inter partes’ and the judicial dispensation system has found an alternative to adversarial litigation, in the form of mediation. The Supreme courts in several cases have reiterated the fact that it has several backlogs of cases and must be approached after all other alternatives have been exhausted. The best part about mediation is that since the parties are coming face to face, reaching an amicable solution seems a possible outcome. If the parties feel a need to state something privately, they can always resort to a caucus and this is the reason why this could be a considered a non-stereotypical as well as progressive method.

However, the field of Intellectual Property involves several disputes of very technical nature; therefore mediation to reach this field has taken time. But with the evolution of mankind and a shift from an agrarian society to the modern one, mediation has reached this field too and will continue to grow in the future. Another reason for the same could be that disputes involving standard essential patents, domain disputes, software disputes, typeface infringements, other copyrights, trademarks and patents involve technical knowledge and for a mediator and the involved parties to have knowledge of this specific area and several questions of law attached to it, seems a little far fetched. This is the reason why the researchers have chosen to write on this topic as it is still pretty raw in the modern times and involves greater scope for research in this specific field. 

HISTORY AND EVOLUTION OF MEDIATION IN INDIA

The recognition in a legislative form to mediation in India was given in the Industrial Disputes Act, 1947 for the first time. The conciliators appointed under Section 4 of the Act are “charged with the duty of mediating in and promoting the settlement of Industrial disputes.” Later in 1999, the parliament passed the CPC Amendment Act of 1999, which inserted section 89 in the original act giving legal recognition to mediation. . In 1995-96, Chief Justice Mr. A.M. Ahmadi lead the Supreme Court Of India to undertake an Indo-U.S. joint study to find solutions to the issue of delays in the proceedings of Indian Courts and every High Court got the order to appoint a study team which associated with the delegates of a San Francisco based institution, called The Institute for the Study and Development of Legal Systems [ISDLS].

Later, several workshops were conducted by the Institute for Arbitration Mediation Legal Education and Development (AMLEAD). In 2003, the Gujarat Law Society introduced a certificate course in “Intensive training in Theory and Practice of Mediation”. The US Education Foundation in India organized several training workshops in 2003. The Chennai Mediation Centre came up on the 9th of April, 2005. This was the first mediation centre that was annexed by court and operated in the premises of Madras High Court. The Mediation and Conciliation Committee was formed on 9th April, 2005 which further introduced a pilot project that lead to mediation centers being opened in Tis Hazari Courts, Karkardooma  Court (2006) and Rohini Court (2009). Gradually, with all the institutions functioning properly, Court-annexed mediation centers were opened in several other city courts.

MEDIATION AND IPR DISPUTES

Management of integrated Securitization of IP assets on ADR/ODR while in context of use of information and technology in mediation and other ADR methods, it would be noted that mediation can play a pivotal role in several undiscovered avenues such as integrated securitization of all types of IP assets and their management . Though some of the aspects being alien to India have picked up enormous growth in other countries and India too shall adapt to it pretty soon. Several law schools have also started adapting to its worth and it is opined that soon, it shall become the need of the hour to find amicable solution in smaller course of time. This shall also resolve the backlog problems as stated earlier which has arisen out of cases and judges presiding ratio. A lot has been done but still a lot is yet to be done and the government’s role in today’s time becomes pivotal.

Mediation

The field of mediation as an alternative dispute resolution focuses on enabling two or more disputants to reach a common solution. The best part about this form is that the parties themselves tend to reach a common point of agreement rather than a third party asking them to do so. Appropriate techniques and skills are selected by mediators to enable a better line of communication between the disputants. The mediators must be unbiased. A variety of disputes may come to mediation such as commercial, diplomatic, workplace, community, family matters, etc. The parties can either represent their case themselves or may resort to a legal representative.

The mediation could either be mandatory as laid down under r. 5 (f) (iii) of the Civil Procedure Mediation Rules, 2003, or it could be court directed if the courts feel that there is scope for reaching a common agreement. Private mediation is also a kind where it could be resorted to on the basis of private entities coming forward and dealing on a monetary basis.

In the case of Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd. [1]The SC had laid down guidelines as to what type of cases could be eligible for ADR like Disputes arising out of contracts (including all money claims); Matrimonial, maintenance, custody of children disputes; Business frauds; etc.

The steps to mediation involve the parties to be referred to mediation as the referral judge convinces the parties to resort to mediation. The judge then gives a referral order. The referral order generally involves the name of the judge, case number, the name of the parties, date and year of institution of the case, stage at which the trial has reached, kind of dispute, the provision under which the referral has been given, mediator’s name, the time and date on which parties have to attend the session, the fee and remuneration, etc.

Next, on the date of the session, it starts by mediator giving an opening statement explain his identity and the fruitfulness of the process, he also asks the parties to introduce themselves and the motive behind this is to create a healthy environment for the parties to open up. Next, the mediator sets up the agenda so that there is no degree of vagueness about the dispute. Joint sessions are held so that the parties can know about each other in a better manner and separate caucus is also an option to gather information at a deeper level. The process is very informal and the knowledge of law per se is not necessary so that the parties can understand the issue and resolve them without involving the technical aspects. By helping the parties in understanding the situation, the mediator tries to help the parties in reaching a common point of settlement. After parties reach a common settlement, the mediator helps the parties in writing down the terms of their agreement and makes them sign it. Such agreement is enforceable by law and has the same value as of a contract. In his closing statement the mediator thanks the parties for resorting to this particular method of dispute resolution. Some of the key advantages could be that the process maintains confidentiality, is mutual, consent based, time conserving, finality; also there is a provision of refund of court fee in case of settlement.

SCOPE OF ADR IN IPR DISPUTES

Commercial Copyright and Software Disputes

These issues generally involve as to whether a party has actually infringed a copyright or not.[2] Thus, the question is debatable as to whether a particular person has copied a work unlawfully, or his work is derived from the copyrighted work.[3] The case generally depends upon the fact that whether there is substantial similarity in the material facts. In order to test that in cases of books or movies or any other thing, two key elements are taken into consideration, access to the original work, and the degree of similarity between the former and the latter.[4] Such disputes involving comparatively a lesser amount of technicalities are open to being referred to mediation. In fact, issues involving software disputes that require much detailed amount of technical knowledge can also be resolved by mediation.[5] Mediation also helps the parties in conserving their trade secrets and other information which may be sensitive. Mediation and other forms of ADR help the parties in deciding onto themselves, the degree to which a piece of information may or may not be made available to the public.[6]

Commercial Patent Disputes

Mediation could be a viable option whenever the disputes involve technical aspects like patent disputes where one has to test its validity and subsequent infringement. The courts can direct the disputants to move to the relevant forum where the presiding officer could be deemed to be well versed with such technicalities. Also patent disputes when resolved through litigation could be very costly and with mediation being resorted, such issues can be resolved within easy time frames and almost 50% less fee.

Trademark and Trade Dress Disputes

Such disputes involve a greater amount of confusion as the plaintiff alleges the defendant to have a similar mark or often the defendant sells his product in a similar packaging as that of the plaintiff, leading to the public being mislead. In a reasonable number of cases, the parties to the case are in a business relationship and the terms may lead to a modification in the license of one or the other for example franchise relationship existing prior therefore it would be better to avoid litigation and resort to mediation as both the parties would be able to formulate the terms that are most suited for their business.

Trade Secrets and Unfair Competition disputes

Several trade secrets involve specific amount of confidentiality that parties are supposed to maintain once a particular trade secret is obtained and if leaked, it tantamount to infringement and such disputes may involve intricacies that are not possible to be solved by the judges, therefore a mediator having specific knowledge about Intellectual Property, will be able to help in a better manner.

Commercial Intellectual Property Licensing Disputes

Companies try to capitalize and maximize the value of their Intellectual Property by entering into licensing agreements. Most agreements involve the extent of source code and object code of software program and issues related to its royalties subject to license or even if the particular program is valid at all. When two parties enter into an agreement, no other entity is better aware of the identity and potential complexity that it may possess than the two parties. Therefore, bringing the parties to a mediation table for the resolution of such disputes seems to be the best option.

Copyright Infringement

When an individual reproduces an original work covered under the copyright laws, it can be called an infringement of copyright. While there are many rights that are incorporated into the Copyright Act, 1968, they can be majorly divided into economic and moral rights. Economic rights are the ones which can be bought, sold and licensed while moral rights only be given to the original creator; most disputes involving moral rights generally are about the duration of moral rights. While people might resort to aggressive litigation, mediation seems a more viable option as both parties can strike a solution for the issue.

Patent Related disputes

Patents are proprietary rights over an invention for particular time, typically 20 years giving  monopoly over invention to the inventor. Issues occur when another party infringes the monopoly right of an individual. The issues get more technical when defendant to such disputes file a counterclaim for patent invalidity. With mediation, parties can come together to a common agreement.

Domain Name

Though trademark and domain name might be similar in some aspects, they are different as they are governed by various laws. While different trademarks could be registered in different countries in various manners, it’s hard for domain names to be exclusive because people can access them irrespective of the geographical location. The national laws may seem inadequate for ‘domain name’ protection. The international regulation was given an initiation through ICANN and WIPO.  It led to creation of a Uniform Domain Name Dispute Resolution Policy (UDNDRP) by ICANN on 24 October 1999. Though in India there has not been an explicit legislation regarding dispute resolution of domain names. Therefore, mediation can be a viable option.

JUDICIAL APPROACH IN INDIA WITH REGARDS TO IPR DISPUTES AND MEDIATION

The case of Salem Advocate Bar Association v. Union of India[7] gave the meaning and extent of mediation. It also led to formulation of the Model Civil Procedure Mediation Rules and such rules were to be framed by the High Courts. Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd[8] is another landmark judgment, giving clarity to the concept of mediation.

In the case of Shree Vardhman Rice & Gen Mills v. Amar Singh Chawalwala[9] the judges stated that matters of  patents , trademarks,  and copyrights ,  litigation  mainly involves parties fighting about temporary injunction and this continues for several years. In the opinion of the judges, it was not proper and   in  matters  relating  to  trademarks,  copyright  and patents,  the  proviso  to  Order  XVII  Rule  1(2)  C.P.C.  should  be  complied with, in a strict manner  by every possible Court, the hearing should happen on a daily basis and the judgment should be laid down in a period of not more than four months.”

Reiterating  the same point in Bajaj  Auto  Ltd.  V.  TVS  Motor  Company  Ltd.,[10]the Supreme Court of  India stated the same point by iterating that in our country, IP disputes carry on for several years  and litigation is mainly fought between the parties over temporary injunction. That is the reason that was given in the case of Shree Vardhaman Rice & Gen Mills. The court also stated that order must be followed by all tribunals and courts. It is pretty evident how cases with such an amount of delay and discourse also involving cost aggravating solutions give mediation a way of line to enter into this field and stand as a bridge between such disputes and organized solutions.

The judgment of Bawa Masala Co. vs. Bawa Masala Co.  Pvt.  Ltd.  And  Anr[11],  where ADR was given an opportunity to majority of disputes,  an order for the adoption of process of early neutral evaluation was passed by the Delhi High Court,  in  a litigation  suit involving Intellectual Property matter.  The court emphasized on inclusion of such disputed under the umbrella of Section 89 of the Code of Civil Procedure, 1908, to achieve an amicable solution. This can be said to be an influential case, where, Indian courts have tried to introduce mediation for resolving IPR disputes. This case is a highlight about courts considering mediation and other ADR methods as a valuable option for getting solutions in IP related matters.[12]

WHY CHOOSE MEDIATION FOR IPR DISPUTES

Mediation in IP disputes can turn out to be an asset, taking into consideration, the technicalities and complexities of law. For example, patent and trade secret disputes involve several technical aspects which are hard for any judge to delve into. The mediator can help the parties to reach an amicable solution where the parties can talk about a compromise while speaking about various technicalities and complexities.

In patent disputes, issues such as inventorship, obviousness, infringement, doctrine of equivalents, conception and corroboration involve several technicalities. Trade secrets may also involve intricacies such as existence and scope of the alleged trade secrets. These issues involve confusion and fame of mark which are technical to deal with. Copyright, in the same manner may involve work made for hire, as well as joint authorship and fair use wants the same kind of knowledge. Likewise, mediation can help in licensing agreements and their preservation too as many parties are in a business relationship which they do not want to hamper.

With mediation as a useful resort, the parties can choose the process of mediation and there is always a scope for modification midway during the proceedings. The aspect of flexibility involved in the process of mediation seems to be useful as several IP related disputes involve national boundaries and courtroom litigation is incapable of incorporating and taking that into consideration. IP dispute litigation may also involve proceedings which may vary from country to country and will be undesirable for several reasons (time, expense, inflexible) therefore; mediation is fruitful since it is a common forum process.

Second useful aspect that should be taken into consideration is that mediation is pretty cost efficient. For example, disputes involving patents, a mediator having specialized knowledge may help in creating a master plan and settlement concerns taking into consideration interrogatories, depositions, production of documents, etc. Also an experienced mediator can help the parties in narrowing down the issues and lowering the number of sessions that the proceedings shall continue. For example, if a patent dispute involves a number of claims, a patentee may after a session of mediation, decide to go for litigation in only one of the claims. If the infringer has strong invalidity or non infringement arguments, and he tells the same to mediator, the mediator may help the patentee to make a further strong objective assessment.

The aspect of confidentiality can also prove to be pretty handy as the parties involved in trade secret disputes want to keep information confidential. Through mediation, the parties can reveal the same information during caucus session and such information definitely remains confidential. On the other hand, in litigation, such information shall not only be risked at the cost of one adversary, but the entire court, cross examiners and courtroom reporters. If in a patent dispute, a patent is held to be invalid while litigation, it may lead to devastating defeat and humiliation for such holder. [13]

In today’s era since globalization and technology is at its apex in the field of company and commercial transactions, cross border IP disputes are becoming pretty common each day. Mediation is a solution as well as a counter to litigation when disputes involve cross borders. Unfamiliarity of national courts with foreign laws, hefty amounts on court proceedings, inconsistency court decisions, as well as potential enforceability problems are some of the common concerns. Mediation is a global solution to parties’ needs as well as resolves territorial jurisdictional concerns.[14]

LIMITATIONS TO MEDIATION IN IPR DISPUTES

Injunction definitely leads to monopolization of markets while the parties involved in mediation pester upon the fact that they want to compete and quarrel about the conditions. Therefore, it becomes one party to leave the market unless it receives a substantial amount of compensation. Such compensation may lead to foul in the antitrust law and shall be deemed to be inadmissible for unnecessary pay for delay.[15]

It is not possible to obtain a public legal precedent through the mediation mechanism. The decision from mediation is binding only on the parties. Therefore, if a patentee wants a legal binding decision applicable for public consideration that is only possible through litigation based process and a binding court judgment.[16]

It is not necessary that the mediation proceedings shall lead to a settlement between parties. It could be a case where the parties may sacrifice their time and money to find out that they have a solution possible only through litigation. Also in such case, till the time mediation is over, both the parties know all the strategies and plans of the opposing party, before they go for a trial, and that is a risk both the parties have to take while going for mediation.

There is a lack of procedural and constitutional protection to the parties, if they resort to go for mediation. Mediation may only lead to one party being overwhelmed and unprotected even if they have the resources to their desirable kind of power.

There is no process of discovery involved in mediation in India. If the parties cannot disclose their set of information without obtaining the same from the counterparty, they cannot be compelled for such disclosure. All they can do is relying on the other party’s good faith.[17]

RISE OF MEDIATION IN IPR DISPUTES IN INDIA

It is a clear matter of fact that mediation has evolved in the field of IPR, specifically in India. In order to resolve the issues in relation to rising backlogs and its solution in the field of IPR, through mediation , the Controller General of Patent Designs and TradeMarks, has collaborated  with the Delhi Legal Services Authority (DLSA), to refer approximately 500 pending rectifications and oppositions in the Trademarks Registry(TMR), Delhi, to mediation and conciliation via a public notice, on 31st March 2016, in consonance with the  Legal Services Authorities Act, 1987. In furtherance to this, the DLSA also released a Standard Operating Protocol on 13th May 2016 for introducing uniformity in such mediation processes in TMR, Delhi.

Also a groundbreaking step towards mediation of IPR disputes is, Section 12A in the Commercial Courts Act of 2015 (“The Act”) that has been introduced through Chapter IIIA of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018 (“The Ordinance”) which makes mandatory the idea of pre-institution mediation and settlement in cases where no urgent relief has been sought. (Under Section 2(c) of the Act, “commercial disputes” is inclusive of disputes which involve matters of intellectual property rights.)The authorities formed under Legal Services Authority Act, 1987 can conduct the process of mediation. It has to be concluded within three months and an addition period of two months can be granted. An arbitral award under the Arbitration and Conciliation Act, 1996 and a settled agreement between parties are now supposedly having the same value.  On 3rd July 2018 notified Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 have been introduced by the centre for standardizing such mediation processes. Such rules are in consonance with the parent act which aims at bringing a rate of reduction in delay of cases. This would motivate the parties to opt for mediation.[18]

The most recent example for mediation coming onto great effect in IPR dispute is the case from the fashion industry where Sanjay Garg had to face allegations from designer Vaishali Shadagule that the designer of Raw Mango had copied her subsequent designs and she accused him under the copyright law. Garg retaliated with filing a suit for defamation against her in the High Court of Delhi. The Fashion Development Council of India then mediated the issue where both the parties kept their points and the issue was amicably resolved. With their being an ultimate backlog in the courts, the people have evolved and started to resort to alternatives and effective solutions. [19]

MEDIATION IN IPR DISPUTES: A GLOBAL APPROACH

The same concerns of unfamiliarity with national laws, effects of time, cost and lack of knowledge of technicalities in IP disputes are evident on a global scale some of the dispute scenarios stated below can be easily solved through mediation.

Supposedly, if a developing country’s medical university like India collaborates with a foreign university, for research in pharmaceutical active compounds; the partners exchange data and research. The foreign university has a policy of patenting campus research and inventions. If there is a patent application regarding any medical research by the foreign university without mentioning the Indian researchers, such an incident may lead to a dispute involving cross border laws applicable and hefty amounts to be paid.

In the same manner a genetic material of a patient gives a cell line to a research institute, and the institute and the patient belong to two different geographical areas, the patent application by institute does not have the patient’s name, such dispute can be a part of a high appealing global debate.

A botanist getting his research on herbs from an indigenous community publishes it and such publication is used by several medical agencies to conduct their research. The customary laws of the community, restraints the people to disseminate knowledge about such herbs. This might lead to a patent dispute on a level with the lack of clarity in jurisdiction.

A global bio-technology company obtaining patents on the grains of a farmer in a developing country through genetic modifications may lead the farmer clueless in the dispute involving such patents because of the technical, legal and economic prowess of the company.

An inventor of consumer goods in a developing country may have a licensed agreement with a manufacturing company and such inventor may sell the goods to the company, though later issues related to royalties might occur leading the inventor clueless in pressure of maintaining trade relations with the manufacturing company inventor clueless in pressure of maintaining trade relations with the manufacturing company.

Though these issues might sound superficial but could be daily scenarios occurring in this era of globalization and e-commerce with technology being at its apex. In such cases, a common forum like mediation could be effective as the parties can open up and strike a compromise between them.

WIPO AND ITS EFFECTIVENESS

The World Intellectual Property Organization was introduced by the UN in the year 1967 in order to give a greater amount of protection to one’s intellectual property. The WIPO Arbitration and Mediation Centre came up in 1994 on a non-profit basis to cut down on the time-cost issues related to IP disputes. It is an effective body for cross-border and cross-cultural disputes in the IP field.

As the quality of mediator is important in several IP disputes, WIPO maintains a database of 1500 neutrals from 70 countries with the addition of further candidates according to the changing needs. WIPO also creates awareness about the value of mediation and other forms of ADR in relevant IP disputes. WIPO has administered over 80 mediations over the last 4 years and out of all cases, 41 percent of them were resolved through mediation.[20]

WIPO offers a combined model of procedures and rules. For example, one such clause is “mediation to be followed in the absence of settlement through (expedited) arbitration.” It gives the parties a chance to come to a more informal forum for resolution. WIPO’s centre has solved a plethora of cases involving issues related to the same concerns stated in the Indian aspect.

The only concern is that several mediation cases under WIPO end in settlement after termination of mediation. For example, in one such recent mediation, a European university holding various pharmaceutical patent applications, and a European pharmaceutical company resorted to mediation for obtaining a license agreement. The mediator, a lawyer with experience of several years in the same industry helped the parties to deepen their knowledge. After proceedings, the parties negotiated directly and closed the agreement.[21]

CONCLUSION

It can be concluded that mediation is one of the most effective ways to resolve IP disputes. It is obvious that the companies would like to avoid conflicts and resolve issues in less time and in a cost efficient manner in order to deal in consonance with their business. Confidentiality always remains an integral aspect of any IPR disputes involving trade secrets or any other disputes. It avoids complexity and confusion of several national laws and their respective applicability to IP disputes. The parties to such dispute get to have control over the process which helps them in protecting their interests in a better manner. Also, an experienced mediator in the specific field of IP shall always be able to help in a more efficient manner. The key to a healthy business relationship is when parties decide to trade together even after the proceedings which is next to impossible through litigation.

In India there is no specific statute or legislation which regulates the process of mediation. Judicial supervision is necessary so that mediators abide by so that mediators abide by the ethics pertaining to mediation. Several courts still need to have a mediation centre of their own. Also, a centre or a panel should be there for the training of mediators in the IPR field.The SC has given several lacunae in Section 89 of the CPC which should be amended after taking into consideration.

Patent infringement cases, and IP cases in general usually involve issues of willful infringement, validity, injunctive relief and unenforceability due to, for example, inequitable conduct. The parties won’t advance towards mediation until they feel confident enough about their own strengths and weaknesses. For a quick resolution to that, a process has to be designed for the orientation of needs that are informational in nature for both parties, and that has to be done before proceeding towards mediation.[22]

 

[1] Afcons Infrastructure Ltd. and Anr. V. Cherian Varkey Construction Co. Pvt. Ltd, 2010 (8) SCC 24.

[2] Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d, 832 837 (Fed. Cir. 1992).

[3] Ibid.

[4] Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990).

[5] John R. Kahn, Negotiation, Mediation and Arbitration in the Computer Program Industry: Why play hardball with software?, pt. III B (1989).

[6] J.E Grenig, Alternative Dispute Resolution$ 1.2 (2d ed. 1997 & Supp. 1998).

[7] Salem Advocate Bar Association v. Union of India, AIR 2003 SC 189.

[8] Supra Note 1.

[9] Shree Vardhman Rice & Gen Mills v. Amar Singh Chawalwala, (2009) 10 SCC 257.

[10] Bajaj  Auto  Ltd.  V.  TVS  Motor  Company  Ltd., 2009 (77) ALR 687.

[11]Bawa Masala Co. vs. Bawa Masala Co.  Pvt.  Ltd.  And  Anr., AIR 2007 Delhi 284.

[12] https://shodhganga.inflibnet.ac.in/bitstream/10603/42957/14/14_chapter_7.pdf

[13]https://www.nysba.org/Sections/Dispute_Resolution/Dispute_Resolution_PDFs/IPWhitePaper_pdf.html?__cf_chl_jschl_tk__=7a5b589a0a12c7d2b580687c6ea58e1cd9e440bd-1579784027-0-AUCb83F5xRyaNrnq3ie6-oBG8kvxE3C2cY9zm-WrWrfDehVBGW7Q5V_24lnwdoF75e_jsbsajrQ5HHJGAPKKrY4rHUoFiKnK-R1FUoBkGKjLKlPHzHnK5enznTb1AcguuI4kC7-6v5SmtYSuZTCkypcwIPmkZU06Gx-28WqeYzV8SC4GRmiq11jMjQtaNqALI8PWDSgCbkTOj718mPBZU1KgkqEcqgMRF-2mj-rvR49BUAPYmgqmTxQ_jCZZuSZe4r9z5O710U_8cNdfJxoPjcNHpbyJPFZrZpPtlZUg87rovwIwM9owcyrKiid8_cutlOG7NTwMQ2MKLGkGh9SVnO-FzScXRwPVT5-6QDb1AniEMZZz9tVclUPIJpihDuw_YnGPXs_Nbnyx2wxKjm7gdDvW9J9SovAiGQRAKduRGN8S

[14] https://www.linkedin.com/pulse/advantages-mediation-intellectual-property-disputes-laurent-deis

[15] https://www.hoffmanneitle.com/wp-content/uploads/The-use-of-mediation-in-settling-patent-disputes.pdf

[16] https://www.wipo.int/wipo_magazine/en/2006/02/article_0008.html

[17] https://lawshelf.com/courseware/entry/advantages-and-disadvantages-of-mediation

[18]

[19]

[20] https://www.wipo.int/wipo_magazine/en/2009/03/article_0008.html

[21] https://www.wipo.int/wipo_magazine/en/2010/01/article_0008.html

[22] https://www.sgrlaw.com/ttl-articles/2016-2/

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