July 1, 2015
Intellectual Property & Technology Law Journal
By Lionel M. Lavenue; Kristi L. McIntyre; Brandon S. Bludau
Authored by Brandon S. Bludau, Lionel M. Lavenue, Kristi L. McIntyre, Carlos J. Rosario, and Cecilia Sanabria
Alternative dispute resolution (ADR) is widely accepted as an efficient and often less-expensive method of resolving litigation. In the intellectual property (IP) area, ADR can be used to flexibly and quickly resolve complex disputes. By selecting ADR over litigation, parties enjoy numerous benefits unique to ADR, including:
1. confidentiality;
2. flexibility;
3. mutuality (the parties may maintain or formulate a lasting and mutually beneficial relationship);
4. effectiveness (the parties can save money and time by avoiding lengthy litigation); and
5. multiple jurisdictional resolution (the parties may simultaneously resolve many parallel disputes in other jurisdictions).
Moreover, for patent holders, ADR prevents a judgment of patent invalidity. In addition, defendants can avoid potential treble damages and hefty attorney's fees associated with litigation.1
Contrary to the current widespread acceptance of ADR, early courts refused to enforce clauses or agreements to settle disputes though ADR.2 To encourage ADR as a means for dispute resolution, Congress passed a series of ADR-promoting laws for federal courts.3 In 1998, the Alternative Dispute Resolution Act (ADR Act) was enacted to require federal courts to implement an ADR program.4 In accordance with the legislative guidance, U.S. courts have implemented ADR programs to resolve lawsuits, including making available ADR programs tailored for patent cases.
This article summarizes three ADR programs currently sponsored by the U.S. District Court for the Eastern District of Texas (ED Texas), the U.S. International Trade Commission (ITC), and the U.S. District Court for the Northern District of California (ND California). While all of these courts are well known for heavy patent caseloads, their ADR programs are structured and operated differently. This summary describes the types and the notable features of the ADR programs implemented by each court, including the organization of the various ADR programs and how to find the full ADR directives. Further, where available, the summary provides statistics associated with the various ADR programs.5
The ED Texas offers two types of ADR: mediation and, on occasion, special masters for settlement purposes.6 Between July 1, 2013 and June 30, 2014, 861 cases participated in mediation in the ED Texas.7 The purpose of the mediation plan is "to provide an alternative mechanism for the resolution of civil disputes."8
Regarding mediator qualifications, "any person may serve as a mediator who has been ordered by the court to serve as a mediator or is approved by the parties."9 Mediators are compensated at a reasonable rate, and absent agreement, the cost of the services is born equally by the parties participating in mediation.
Any civil suit may be referred to mediation, either through agreement of the parties or by a court order. If through a court order, the court appoints the mediator and establishes the deadline for convening the mediation.
If the mediator believes that the case is not being reasonably evaluated by one or both sides, he can meet separately with one or both sides. The mediator can "request the analysis that has gone into the evaluation of the case, including the names and authority of the individual involves in the analysis."10 Then, the mediator may request identified individuals or designate that a particular level of authority be present at a subsequent mediation.
All proceedings in the mediation are confidential in all respects, including statements made by a party, attorney, or other participant. Mediations may not be "reported, recorded, placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission against interest."11 Anything said or done during mediation is non-binding, unless a settlement is reached.
The mediator must file a mediation report electronically within five days of the conclusion of the mediation. The report indicates whether the case settled, was continued, or whether the mediator declared an impasse.
Although the ED Texas does not track or publish success rate of the court-sponsored mediation program, our research with a commercial database found that settlement (including settlement through private ADR) is a major disposition at the ED Texas, as summarized in Exhibit 1.12
In recent years, Section 337 investigations have significantly increased. In 2009, the ITC instituted 29 investigations. That number increased to 51 in 2010, 70 in 2011, and 48 in 2012.13 The ITC's mediation program was first established as a pilot program in 2008 and later became a permanent agency program in 2010.14 The 337 Mediation Program is aimed at facilitating the settlement of disputes and enhancing the efficiency of Section 337 adjudication by reducing the number of issues, patent claims, and/or respondents and otherwise assisting the ITC in managing its 337 caseload. The basic structure of the ADR program implemented at the ITC was modeled on the Federal Circuit's mediation program, which was considered highly successful.15
The ITC maintains a roster of mediators including distinguished retired federal jurists and senior counsel from intellectual property practices located in major IP commerce centers across the country. Mediator candidates are screened by the Secretary and the most-qualified mediator candidates are submitted to the ITC for approval. Mediators provide a single-day session of pro bono mediation and mediators may or may not be compensated for additional sessions as agreed upon by the parties and the mediator.
Parties can request initiation of the 337 Mediation by submitting a form found on the ITC mediation Web page or requesting mediation via email to 337Mediation@usitc.gov. Although any party can request to enter into mediation, parties are encouraged to submit joint requests. The Staff Attorney for the Office of Unfair Import Investigations also may be part of the mediation process. The presiding administrative law judge (ALJ) may also require that the parties attend mediation, and the parties may choose to use the ITC's own program or any other program.
Each 337 Mediation Program mediator executes a non-disclosure agreement (NDA) and submits it to the Secretary for counter-signature. Independent mediators, however, can set their own requirements for all aspects of the mediations they conduct. Party representatives and in-house counsel participating in the 337 Mediation Program must also execute an NDA. The NDA places participants under the Standing Commission Protective Order for Mediation. Confidential submissions to the mediator do not form part of the record for the ITC Investigation. The submissions will not be shared with other parties, the Secretary, the ALJ, or the Commission. The mediator communicates only with the Secretary about the mediation, however, the mediator does not provide party submissions to the Secretary.
If the parties have been ordered to participate in mediation by the ALJ, they may be required to provide a report to the ALJ. No report is made to the Secretary regarding any specifics on the mediation by any of the parties or the mediator.16 Unlike district court, the 337 Mediation Program provides that settlement agreements reached through mediation will be "reviewed for consistency with the public interest by the Commission investigative attorney, the presiding ALJ, and the Commission."17
In the ITC, 22 percent of open investigations were participating in mediation in October 2012.18 Although the ITC does not track or publish the success rate of the 337 Mediation Program, statistics available through third-party commercial databases show that settlement (including those through private ADR) constitutes a significant portion of dispositions at the ITC, as shown in Exhibit 2.19
The ND California employs a Multi-Option Program that includes three distinct, court-sponsored ADR options:
(1) non-binding arbitration;
(2) early neutral evaluation (ENE); and
(3) mediation.
Either party may request any of these ADR programs. By order or upon approval of the assigned judge, the parties may substitute one of the court's programs with a private ADR procedure or an early settlement conference with a magistrate judge.20
An ADR Unit supports the court's ADR Multi-Option Program. The ADR Unit consists of a Director of ADR Programs, as well as staff attorneys and support personnel, and is responsible for administering and evaluating the court's ADR Programs.21 Further, the court designates a magistrate judge as the ADR Magistrate Judge. The ADR Magistrate Judge oversees the ADR Unit22 and rules on any complaints alleging violations of the ADR Local Rules.23
The ADR Unit maintains a panel of "neutrals" to serve the court's ADR programs based on an application process.24 Generally, the qualifications for all neutrals are the same regardless of the ADR process (arbitration, ENE, and mediation). Generally, each neutral must be a lawyer who is a member of the bar of the ND California or a member of the faculty of an accredited law school and must successfully complete initial or periodic training as required by the court.25
Cases enter the ADR Multi-Option Program automatically, or by stipulation, motion, or order.26 If a case is automatically assigned to the ADR Multi-Option Program, the notice of such an assignment sets forth ADR Deadlines specifying the deadline for filing a required ADR Certification and either a Stipulation Selecting an ADR Process or a Notice of Need for ADR Phone Conference.27 Any party to a case automatically assigned to the ADR program may file a motion for relief with the assigned judge requesting relief from automatic referral.28 By the designated deadline, the parties must have either stipulated to one of the ADR processes or requested an ADR phone conference with a member of the ADR Legal Staff. With the assistance of the ADR Legal Staff, the parties can create a customized process to meet their needs (or they may choose to select one of the court's ADR processes).29 If the parties are unable to agree on an ADR process, the judge may assign the case to a specific ADR process, which may be based on a recommendation from the ADR legal staff.30
The court-sponsored arbitration process is an "adjudicative process in which an arbitrator or a panel of three arbitrators issues a non-binding judgment ('award' or 'decision') on the merits after an expedited, adversarial hearing."31 One of unique features of the arbitration in the ND California is that the arbitration is non-binding—either party may reject the award or decision and request a trial de novo.32 The arbitration process is designed to be less formal and less expensive than trial, but does include important trial-like sources of discipline that create good opportunities to assess the impact and credibility of key witnesses.33
If a case is referred to arbitration, the ADR Unit appoints an arbitrator from the court's panel of neutrals who has expertise in the subject matter of the lawsuit.34 Alternatively, the parties may jointly request the court to appoint a panel of three arbitrators.35 There is no additional cost to the litigants for participating in arbitration. Instead, arbitrators are compensated by the court.36
Once the arbitrator(s) is selected, the arbitrator shall arrange for a pre-session phone conference with the parties to set the date and location for the arbitration within the deadline fixed by the assigned judge or within 90 days from entry of the order referring the case to arbitration.37 During the conference, the arbitrator discusses various logistics of the arbitration.38
No later than seven days before the arbitration session, each party must submit a written Arbitration Statement.39 The parties may present evidence and generally are guided by the Federal Rules of Evidence, but the arbitrator shall not be precluded from receiving evidence that the arbitrator considers to be relevant and trustworthy and is not privileged.40 The parties may compel evidence, and testimony is taken under oath and subject to reasonable cross-examination.41
Arbitrators, however, are not authorized to facilitate settlement discussions between the parties. If the parties desire assistance with settlement negotiations, the parties may request that the arbitrator refer the case to mediation, ENE, or a settlement conference.42
The arbitration award is sealed by the clerk, and must not be disclosed to any judge who might be assigned to the case until the court has entered final judgment in the action or the action has been otherwise terminated.43 Recorded communications made during the arbitration may, for limited purposes, be admissible at trial de novo.44 For example, because testimony is under oath, in some cases, the recorded testimony may be used to impeach a witness later at trial.
After arbitration, the arbitrator must make an award clearly identifying the prevailing party and the precise amount of money awarded, if any.45 The award is to be promptly served to the parties and sealed by the clerk, and must not be disclosed to any judge who might be assigned to the case, until the case has terminated.46 Within 30 days of the notice of filing the arbitration award, either party may file a demand for trial de novo, otherwise the right is waived and judgment shall be entered on the arbitration award.47 In the absence of a demand for trial de novo within the specified timeframe, a judgment will be entered on the arbitration award that "shall have the same force and effect as a judgment of the court in a civil action, except the judgment is not subject to review in any other court by appeal or otherwise."48
The ENE session aims to position the case for early resolution by settlement, dispositive motion, or trial and serves as a cost-effective substitute for formal discovery and pretrial motions.49 Unlike the arbitration process, the evaluators may provide settlement assistance and also may help identify areas of agreement and offer case-planning suggestions.50 The goals of the ENE process include enhancing direct communication between the parties about their claims and supporting evidence, providing an assessment of the merits of the case by a neutral expert, providing a "reality check" for clients and lawyers, and facilitating settlement discussions.51
Upon entry of an order referring the case to ENE, the ADR Unit appoints an evaluator who has expertise in the subject matter of the lawsuit.52 Unlike arbitration, the parties must pay for the services of the ENE evaluator who must clearly communicate all terms and conditions of payment to the parties.53
Similar to the arbitration process, the evaluator in ENE shall schedule a pre-session phone conference to schedule the date and place of the ENE session, which ordinarily must be within 90 days of entry of the order referring the case to the ENE, unless otherwise ordered by the judge.54
No later than seven days before the first ENE session, each party must submit an ENE statement that briefly describes the substance of the suit and addresses whether there are legal or factual issues whose early resolution would reduce significantly the scope of the dispute or contribute to settlement negotiations.55 The ENE statements must not be filed with the court, and the assigned judge shall not have access to them.56
In an ENE session, each party presents its claims or defenses, and the evaluator helps the parties identify areas of agreement and, when feasible, enter stipulations. The evaluator writes an evaluation that can include an estimate of the likelihood of liability, the dollar range of damages, and an assessment of the relative strengths and weaknesses of each party's case.57 The evaluator offers to present the evaluation to the parties, who may then demand oral presentation of the evaluation or, if all parties agree, may proceed to discuss settlement, which may be facilitated by the evaluator.58
The evaluator cannot impose a settlement and cannot attempt to coerce a party to accept any proposed terms.59 The case remains on the litigation track if no settlement is reached, with all formal discovery, disclosure, and motion practices preserved.60
Except under limited exceptions, the court, the evaluator, all counsel and parties, and any other persons attending the ENE session must treat the contents of the written ENE Statements as confidential information. Further, anything that happened or was said, any position taken, and any view of the merits of the case expressed by any participant in connection with any ENE session shall be treated as confidential information.61
At the conclusion of an ENE session, the evaluator and the parties shall discuss whether it would be beneficial to schedule any follow-up to the session that may facilitate case development or settlement.62 The evaluator may order various kinds of follow-up, including responses to settlement offers or demands, a focused telephone conference, exchanges of letters between counsel addressing specified legal or factual issues, or written or telephonic reports to the evaluator.63
Within 14 days of the close of each ENE session, the evaluator reports the date of the session, whether any follow-up is scheduled, and whether the case settled in whole or in part to the ADR Unit.64
The court summarizes the mediation process as "a flexible, non-binding, confidential process in which a neutral person (the mediator) facilitates settlement negotiations."65 The goal of mediation is to reach a mutually satisfactory agreement resolving all or part of the dispute.66
Similar to the court's arbitration and ENE processes, after entry of an order referring a case to mediation, the ADR Unit will appoint a mediator from the court's panel.67 Mediators who are not lawyers can be selected if they have appropriate professional credentials in another discipline and are knowledgeable about civil litigation in federal court.68 However, consent of the parties is required before a non-lawyer mediator can be appointed to a case.69
As with the ENE process, the parties in mediation must pay for the services of the mediator who must clearly communicate all terms and conditions of payment to the parties.70 The parties may agree to share the fee as they choose, and must pay the mediator directly.71
The mediator must arrange for a pre-mediation conference to fix the date and place of mediation within the court's deadlines, which unless otherwise ordered, must be within 90 days after entry of the order referring the case to mediation.72
Similar to arbitration and ENE, the mediator must schedule a brief joint telephone conference before the mediation session with counsel who will attend the mediation session to discuss matters such as the scheduling of the mediation, the procedures to be followed, the nature of the case, the content of the written mediation statements, and which client representatives will attend.73
In addition, similar to the ENE process, each party must submit a written Mediation Statement before the first mediation session.74 The statements must identify the person or persons with decision-making authority, describe briefly the substance of the suit, address the party's views of the key liability issues and damages, and discuss the key evidence.75 Because the Mediation Statements are confidential, they must not be filed with the court, and the judge shall not have access to them.76
The procedure at mediation shall be informal and should be structured by the mediator so as to maximize the benefits of the process.77 The mediator may hold separate, private caucuses with each side or each lawyer or, if the parties agree, with the clients only.78 Any communications made during the caucus are confidential and may not be disclosed without permission.79
ND California requires that the contents of the written Mediation Statements, anything that happened or was said, any position taken, and any view of the merits of the case expressed by any participant in connection with any mediation be treated as confidential information that shall not be disclosed to anyone not involved in the litigation, disclosed to the assigned judge, or used for any purpose, including impeachment, in any pending or future proceeding (notwithstanding limited exceptions).80
At the close of mediation, the mediator and the parties shall jointly determine whether it would be appropriate to schedule a follow up.81 A follow up could include written or telephonic reports that the parties might make to one another or to the mediator, exchange of specified kinds of information, or another mediation session.82 Within 14 days of the close of each mediation session, the mediator must report the date the session was held, whether the case settled in whole or in part, and whether any follow up is scheduled to the ADR Unit.83
As with the ENE Process, a mediator cannot impose a settlement and cannot attempt to coerce a party to accept any proposed terms.84 If no settlement is reached, the case remains on the litigation track with all formal discovery, disclosure, and motion practices preserved.85
In a settlement conference, a judicial officer facilitates the parties' efforts to negotiate a settlement, similar to a mediation session.86 In addition to oversight by a magistrate judge, a settlement conference may differ from mediation in that the settlement judge might articulate views about the merits of the case or the relative strengths and weaknesses of the parties' legal positions.87
As indicated in the court's ADR Handbook, the court's ADR legal staff will work with parties to customize an ADR process to meet the needs of their case or to design an ADR process for them.88
The ADR legal staff also may help the parties structure a non-binding summary bench or jury trial, which is described as "a flexible, non-binding process designed to promote settlement in complex, trial-ready cases headed for protracted trials."89 Summary trials provide the parties with an advisory verdict after a short hearing in which the evidence may be presented in condensed form, usually by counsel and sometimes through witnesses.90
In lieu of the court's other ADR processes, briefly described above, the court may refer cases to private providers generally only after stipulation of the parties.91 Under the Local Rules, the assigned judge will take appropriate steps to assure that a referral to private ADR does not result in an imposition on any party of an unfair or unreasonable economic burden.92
Statistics available from a third-party commercial database show that settlement constitutes a significant portion of dispositions at the ND California, as shown in Exhibit 3.93
The court's Web site provides an annual ADR Program Report with general information on the overall caseload, the types of cases, and other information regarding the court's ADR program and other relevant news to the ADR Unit. Mediation has been the most popular choice of ADR for each of the identified years, whereas arbitration has been the least used. From the court's 2014 Annual Report, surveys of participants in the mediation or ENE processes continue to show that more than 90 percent of participants are satisfied with the ADR process and agree that the benefits outweigh the costs. According to the annual report, reported settlement rates were 68 percent for mediation and 75 percent for ENE.
As shown above, while the ED Texas and the ITC use mediation as the go-to court-sponsored ADR program, the ND California offers a more comprehensive Multi-Option Program that includes three distinct types of court-sponsored ADR:
(1) non-binding arbitration;
(2) early neutral evaluation; and
(3) mediation.
The Multi-Option Program of the ND California grants the broadest decision-making power to the court among these programs. Because of the definiteness of each ADR process described in local rules, litigants are strongly advised to familiarize themselves with the ADR Local Rules in that district.
In the ED Texas, although mediation is the sole form of court-sponsored ADR, the settlement rate is high for terminated cases since 2000 (slightly higher than the ND California's settlement rate). The reason behind these statistics, however, may not be related to the structure of the ADR programs in each jurisdiction, and may instead be related to characteristics associated with the ED Texas, such as high-rates of lawsuit initiated by non-practicing entities against often 10s or 100s of defendants.
The 337 Mediation program at the ITC is unique in a few aspects. First, the program is tailored to maintaining a speedy investigation at the ITC. The parties are only required to participate in a single session of mediation, and no additional sessions are required after conclusion of the first session. The reason for the single session mediation requirement is likely the inability to delay investigations or change scheduling to incorporate the parties' desire to resolve the investigation through ADR. Second, at the ITC, settlement agreements resulting from mediation are reviewed for consistency with the public interest. These features are not shared with the ED Texas and the ND California.
While the ADR programs in the three jurisdictions differ in some respects, they all share the same basic characteristics and fundamental goal. All are aimed at quick and cost effective resolution of litigation, while protecting the confidentiality of the information shared. By using any of these programs, the parties can efficiently use time and resources to solve their disputes by avoiding lengthy litigation. The parties simultaneously can resolve parallel disputes in other jurisdictions, including foreign legal actions, resulting in potentially global dispute resolutions. Moreover, ADR offers the availability of creative solutions that may not be traditionally available in litigation. The efficacy of the ADR programs could be maximized, however, if parties could customize their ADR program with the proactive involvement of the court—particularly in jurisdictions such as ED Texas and the ITC, where mediation is the only form of court-sponsored ADR.
Overall, ADR programs implemented by federal courts and agencies will continue to provide useful methods of dispute resolution in the IP field, and in particular patent litigation, and familiarity with these ADR programs remains to be an integral part of dispute resolution process.
Endnotes
1 See Vivek Koppikar, "Using ADR Effectively in Patent Infringement Disputes," 89 J. Pat. & Trademark Off. Soc'y 158, 160-163.
2 See Randy Berholtz et al., "Improving Patent Adjudication: An Updated and Revised Survey of Practitioners' Experience and Opinions," 32 T. Jefferson L. Rev. 223, 228-229.
3 See id. at 229. As to arbitration in federal courts, Judicial Improvements and Access to Justice Act of 1988, Pub. L. No. 100-702, 102 Stat. 4659 (1988) (codified as amended at 28 U.S.C. §§ 651 - 658 (1998)). In relation to other types of ADR, Civil Justice Reform Act of 1990, Pub. L. No. 101-650, 104 Stat. 5090, (1990) (codified as amended at 28 U.S.C. §§ 471 - 482 (1991)).
4 ADR Act, Pub. L. No. 105-315, 112 Stat. 2993 (1998) (codified as amended in scattered sections of 28 U.S.C. §§ 651 - 658 (2006)).
5 For more information, readers are encouraged to visit the Web sites of the various ADR programs, which can be located at: (a) U.S. District Court for the Eastern District of Texas: http://www.txed.uscourts.gov/page1.shtml?location=mediation ; (b) U.S. International Trade Commission: http://www.usitc.gov/intellectual_property/mediation.htm ; and (c) U.S. District Court for the Northern District of California: http://www.cand.uscourts.gov/adr.
6 See Alternative Dispute Resolution: The Litigator's Handbook 696 (Nancy F. Atlas et al. eds., 2000), available at https://books.google.com/books?id=7JyLqLdf_04C&pg=PA696&dq=ALTERNATIVE +DISPUTE+RESOLUTION:+THE+LITIGATOR%E2%80%99S+HANDBOOK +696&hl=en&sa=X&ei=5s7tVMDfMcuqgwSD8oGYAg&ved=0CDIQ6AEwAA . This summary only discusses mediation, as there are no rules and/or guidelines from the court about special masters for settlement purposes.
7 No formal report; information from court itself.
8 United States District Court for the Eastern District of Texas, "Court-Annexed Mediation Plan" (as amended November 19, 2007), available at http://www.txed.uscourts.gov/page1.shtml? location=mediation.
9 Id.
10 Id.
11 Id. at 3.
12 Roughly 79 percent of all terminated and coded cases ended through "likely settlement." "Likely settlement" includes plaintiff's voluntary dismissal and stipulated dismissal. The data covered IP cases filed between January 1, 2000 and April 4, 2015, but did not include results for trademark and copyright cases that were not pending as of January 1, 2009.
13 See Lisa R. Barton, Mediation of Intellectual Property Disputes Under the Tariff Act of 1930, as Amended (19 U.S.C. § 1337) (hereinafter Mediation Under Tariff Act) at 6, available at http://www.usitc.gov/intellectual_property/docs/Mediation%20of%20Intellectual%20Property%20Disputes%20--%20An%20Informative%20Discussion%20of%20IP%20Mediation%20at%20USITC%20(Seminar%20Version).pdf.
14 Id. at 3.
15 See CAFC, Circuit Mediation Office Statistics for Fiscal Year 2007 to 2014, available at http://www.cafc.uscourts.gov/the-court/statistics.html.
16 Mediation Under Tariff Act at 16.
17 User Manual at 8, available at http://www.usitc.gov/intellectual_property/mediation.htm.
18 Mediation Under Tariff Act at 17.
19 About 30 percent of all instituted investigations ended through "likely settlement." See supra.
20 The procedures and requirements of the court's ADR Multi-Option Program are detailed in the Court's ADR Local Rules. ADR L.R, available at http://www.cand.uscourts.gov/localrules/ADR . Additional information also may be found in the court's ADR Handbook entitled Dispute Resolution Procedures in the Northern District of California. ADR Handbook, available at http://www.cand.uscourts.gov/adrhandbook.
21 ADR L.R. 2-1.
22 ADR L.R. 2-2.
23 Id.
24 ADR L.R. 2-5(a).
25 ADR L.R. 2-5(b).
26 See ADR L.R. 3-3.
27 Civil L.R. 16-2, 16-8, and ADR L.R. 3-5(c).
28 ADR L.R. 3-3(c).
29 See ADR L.R. 3-5(c).
30 ADR L.R. 3.4(e).
31 ADR L.R. 4-1.
32 Id.
33 ADR Handbook, p.5.
34 ADR L.R. 4-3.
35 Id.
36 ADR L.R. 4-3(b).
37 See ADR L.R. 4-4(a).
38 ADR L.R. 4-7.
39 ADR L.R. 4-8.
40 See ADR L.R. 4-10(e).
41 Id.
42 ADR L.R. 4-10.
43 ADR L.R. 4-11(c).
44 ADR Handbook, p.6.
45 See ADR L.R. 4-11.
46 Id.
47 See ADR L.R. 4-12.
48 ADR L.R. 4-11(d).
49 ADR Handbook, p.7.
50 See ADR L.R. 5-1.
51 ADR Handbook, p.7.
52 ADR L.R. 5-3(a).
53 ADR L.R. 5-3(c).
54 See ADR L.R. 5-4.
55 Id.
56 ADR L.R. 5-8(b).
57 ADR Handbook, p.7.
58 ADR L.R. 5-11(c).
59 ADR Handbook, p.8.
60 Id.
61 ADR L.R. 5-12(a).
62 See ADR L.R. 5-13(a).
63 ADR L.R. 5-13(b).
64 ADR L.R. 5-14.
65 ADR L.R. 6-1.
66 ADR Handbook, p.10.
67 ADR L.R. 6-3(a).
68 Id.
69 Id.
70 ADR L.R. 6-3(d).
71 Id.
72 ADR L.R. 6-4.
73 ADR L.R. 6-6.
74 ADR L.R. 6-7.
75 Id.
76 ADR L.R. 6-7(b).
77 See ADR L.R. 6-11(a).
78 ADR L.R. 6-11(b).
79 Id.
80 ADR L.R. 6-12.
81 ADR L.R. 6-13.
82 Id.
83 ADR L.R. 6-14.
84 ADR Handbook, p.10.
85 Id.
86 See ADR L.R. 7-1.
87 Id.
88 ADR Handbook, p.14.
89 ADR L.R. 8-1.
90 Id.
91 See ADR L.R. 8-2.
92 Id.
93 Statistics provided by Lex Machina. About 72 percent of all cases filed since January 1, 2000, ended through "likely settlement." See supra.
Originally printed in Intellectual Property & Technology Law Journal. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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