A Is For Asshole, the ABC's of Conflict Resolution

View more OpenOffice presentations from Victoria Pynchon.

Blawg Review #171 and The Virginity Project

If you're old enough to remember this video, you'll be happy to hear you can feel like a virgin again for the very first time at the Blawg Review Carnival of Legal Bloggers this week because it's bringing you the IP ADR Virgin Blawg Review #171 and Kate Monro's The Virginity Project for the very first time.

Seven Reasons to Download BlawgWorld07 Today

See the Legal Business Development Blawg for the Seven Compelling Reasons to Download BlawgWorld 2007 Today!

The IP ADR Blog Has a New Home!

(OK, it's the J. Paul Getty Museum in Los Angeles. But what better symbol for the IP ADR Blog's new home than a museum whose former antiquities curator, Marion True, has been on trial in Rome for 19 months on charges of trafficking in looted antiquities and whose conflict with Italy over 51 artifacts held by the Getty seems intractable. See some of the NYTimes coverage on these and other Getty disputes here and here).

We here at the IP ADR Blog -- Les Weinstein, Mike Young, Eric Van Ginkel, and Vickie Pynchon -- have "lived" here at the http://www.ipadrservices.blogspot.com/ address only since May and we're already moving?

That's right! The plan all along was to have the brilliant Kevin O'Keefe over at LexBlog provide us with a professionally designed and managed IP ADR Blog. We were only just tinkering here with blogspot while waiting for the interior decorator to put the finishing touches on our spacious new living room.

So we invite our few regular readers, as well as any new ones, over to our new house for a summer IP bar-b-q.

Break out the sun-screen and BYOB. We'll supply the virtual ribs, hot dogs, hamburgers and soda pop.

Drop by and leave us a welcome note. We think you'll find the water in the pool just cool enough to end your work-week and begin your weekend on a refreshing Southern California summer surfing note.

IPADRBLOG.COM HERE WE COME!!!!!!!!!!!!!!!!

The IPADR Negotiation Dictionary: Distributive Bargaining

Distributive Bargaining (d-stryby-tv bärgn-ng)

aka "cutting the baby in half"

(left: King Soloman. Although we use the term "cutting the baby in half" to signify compromise, the phrase refers to Soloman's "reality test" for two women, each claiming to be an infant's mother. When the King suggested that the baby should be cut in half, the woman who gave up her claim to the infant rather than to see her child die, was declared to be its mother. Therefore, the term should be more readily associated with integrative or interest-based negotiation than with distributive bargaining. In an interest-based negotiation, the term would be used dismissively to refer to the the harm that could befall the parties if they accept a compromise for its own sake rather than exploring party-interests that could be satisfied by a proposed negotiated resolution).

• the process by which the parties distribute the substance over which they are negotiating
  
• the “spread” between the parties’ respective bottom lines
  
• a Zero Sum exchange in which whatever one side gains, the other side loses
  
• means of reaching a deal in which one party generally has to suffer the larger portion of the “loss” on the spread
  
• classic “win-lose” negotiation


• parties move toward resolution through a series of concessions


• when mediating, the parties often use the mediator as a “conduit” for the series of concessions

IP ADR: An Interview with Jay Gordon Taylor

I recently had the distinct pleasure of interviewing IP litigator and mediator Jay Gordon Taylor about the arbitration and mediation of intellectual property disputes, the first part of which follows Jay's short bio below.

Mr. Taylor is a partner with the Indianapolis, Indiana law firm of Ice Miller. His primary practice area is intellectual property law with a focus on patent, trademark, copyright, and trade secret litigation and mediation. He also concentrates in business aspects of intellectual property law such as acquisition, sale and licensing of intellectual property assets, and computer hardware and software sale and licensing.

Part I: Arbitration of Intellectual Property Disputes

MS. PYNCHON: Do you find that IP cases benefit from arbitration or is arbitration becoming so burdened with discovery, motion practice and the like that it’s little better than litigation?

MR. TAYLOR: I have never been a big fan of arbitration except in the case of international disputes. In my experience, arbitration has been only slightly less costly and time consuming. The absence of a right to appeal if the result is erroneous would caution me against arbitrating a patent infringement dispute again.

I once had a client who faced a potential $450 million infringement exposure after an arbitrator reached a very dubious interpretation of a license clause. Because the arbitral award was binding, there was no way to challenge the opinion. Luckily, we ultimately won by proving a combination of non-infringement and invalidity. That, however, came after years of litigation and tremendous cost, most of which could probably have been avoided if there had been an appellate process after the arbitral decision.

MS PYNCHON: Do you believe the parties would likely have agreed to an appeal by one or more arbitrators before the arbitration commenced?

MR. TAYLOR: No, the license clause which had been negotiated years before required binding arbitration. The parties were locked into that clause.

MS. PYNCHON: Would arbitration be more attractive to you today if your opponent would agree to arbitral "appellate" review?

MR. TAYLOR: No. I do not think arbitration with an appeal is appreciably more appealing (quicker, less disruptive and less costly) than litigation in federal court.

MS. PYNCHON: Would you arbitrate any patent infringement cases today?

MR. TAYLOR: I think arbitration can be beneficial in international disputes. Most foreign companies distrust the US court system and are accustomed to resolving disputes without litigation. There is the additional problem of enforcing a judgment against a foreign entity. If the foreign entity has no US presence or assets, the judgment can only be enforced only by initiating an action in the courts of the country where the entity is located. Courts of most industrial countries will enforce an arbitration decision without question whereas they might not enforce a foreign court decision.

In tomorrow's post, we'll continue our interview with Jay Taylor about the mediation of IP disputes.

IP Settlements: SanDisk and Ritek

Have I said I love my flash drive recently? I love my flash drive!!

That said, from IP Biz Blog we learn that SanDisk and Ritek have settled their flash memory infringement litigation.

ITPro wrote:

Storage companies SanDisk and Ritek have settled their patent dispute which will see the two companies enter into an agreement on royalty bearing cross-licenses.

All further patent infringement litigation against Taiwan-based Ritek has also been dropped. The terms and conditions of the deal remain undisclosed.The deal will see the Taiwanese firm be the only manufacturer in its country to produce flash cards, USB flash drives and storage systems licensed by SanDisk.

This settlement comes long after the United States Supreme Court refused to hear an appeal from the CAFC's favorable ruling for SanDisk on a procedural issue. As we've said before, breathe in, you win, breathe out, you lose, breathe in . . . .

As IP Biz earlier reported:

The U.S. Supreme Court on December 12, 2005 rejected an appeal of a decision by the CAFC made by digital media manufacturers (Ritek Corp., Memorex Products Inc. and Pretec Electronics Corp.) that are battling a patent infringement lawsuit filed by flash data storage card maker SanDisk Corp. The CAFC had ruled that District Court Judge Vaughn Walker had misconstrued the claims of the patent at issue and remanded to him for further proceedings. One of the many district court reversals on claim construction.