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The life of a patent dispute is often long, expensive, and riddled with small victories and small defeats along the way. Patent mediation service is among the most complex and costly proceedings in the federal court system and one of the areas where mediation can deliver the most meaningful relief to both sides.
Brian Gilchrist is a certified mediator based in Orlando, Florida, with extensive experience in intellectual property disputes. His practice focuses on helping parties resolve patent infringement, validity, and licensing disputes efficiently without the uncertainty, cost, and disruption of a full trial.
Mediation can occur at any stage of a patent proceeding: before a lawsuit is filed, at the early stages of litigation, around the Markman hearing, before or after summary judgment, before or after trial, and during appeal. Each stage presents distinct benefits and challenges. Understanding them is the first step to choosing the right moment to settle.
Patent litigation can be extraordinarily expensive and time-consuming. The 2017 AIPLA Economic Survey found that even a patent case with less than $1,000,000 at stake costs a party an average of $500,000. Costs rise sharply when more is at risk. A case of even moderate complexity can cost millions of dollars before reaching trial, and trial is far from the end.
Reversal rates at the Federal Circuit remain high. Even a complete trial victory remains at significant risk on appeal. It has been documented that there are over 30 different defenses available to a patent infringement defendant, making patent cases some of the most complex matters our federal courts handle. Litigation also imposes non-financial costs: executive time, disruption to business development, diversion of engineering and technical resources, and the uncertainty that hangs over a company for the years a case may take to resolve.
The risks of proceeding to judgment are substantial for both sides. An infringement finding can result in a significant damage award, an ongoing royalty, or an injunction preventing use of the technology. A finding of invalidity can eliminate the patent holder’s asset entirely.
The outcome of any patent lawsuit is genuinely impossible to predict. Judges do not generally have specialized training in patent law or the technical background to independently evaluate complex technology. Juries who are ultimately asked to decide these matters but are even less equipped to parse the technical and legal nuances that experienced patent counsel often struggle to resolve between themselves.
With this level of uncertainty built into the process, mediation is uniquely well-suited for patent disputes. It eliminates the uncertainty inherent in litigation and caps the expenditure not just of legal fees and expert costs, but of the enormous drain on a company’s people, time, and strategic focus.
Patent mediation and patent arbitration are two different means of resolving a dispute outside of a courtroom, and the distinction matters significantly.
In patent mediation, the parties retain full control of the outcome. The mediator facilitates negotiation, helps parties assess their positions realistically, and guides them toward a mutually acceptable resolution but the mediator has no authority to impose a result. Settlement happens only if both parties agree.
In patent arbitration, the parties hire a neutral to act as a private judge. The arbitrator hears evidence and argument, then issues a binding ruling on the issues in dispute. The outcome is dictated by the arbitrator, not chosen by the parties.
For most patent disputes, mediation is the preferred starting point: it preserves party control, is fully confidential, and carries none of the finality risk of arbitration. Arbitration is better suited for situations where the parties want a binding private ruling but wish to avoid the public record and procedural burdens of federal court.
Mediation after a party receives a cease and desist letter or a threat of suit is the earliest opportunity to resolve the dispute. The upside is significant: pre-suit mediation carries the greatest potential to avoid the daunting costs and disruption of litigation altogether.
The challenge is informational. A patent holder typically does not yet have access to the accused infringer’s sales data, making a reliable damages model difficult to construct. An accused infringer has not yet had the opportunity to fully investigate the defenses available to it. For these reasons, successful pre-suit patent mediation requires both parties to be willing to allow meaningful disclosure of information, including some that they would ordinarily guard closely in litigation.
When both sides can commit to good-faith information exchange, pre-suit mediation is the most efficient path to resolution.
Once a lawsuit is filed, most jurisdictions require the parties to exchange preliminary infringement contentions, preliminary invalidity positions, and each party’s proposed claim term constructions within the first few months after the initial case management conference.
Mediating after these disclosures gives parties a foundational understanding of each other’s legal positions and enough to explore informed settlement opportunities before incurring the substantial costs of fact discovery, expert witness retention, and claim construction briefing. This window is often underutilized but offers a strong balance of information and cost savings.
As part of patent litigation, the court is typically asked to interpret disputed claim terms or a proceeding known as claim construction, or the Markman hearing. The court’s ruling on how the claims are interpreted can dramatically shift the apparent strength of each party’s infringement and invalidity positions.
The period just before or after a Markman ruling is a natural inflection point for mediation. Parties can realistically assess how the court’s interpretation affects their case without yet having spent the full cost of expert discovery and trial preparation. Many patent disputes that are intractable before a Markman ruling become resolvable once the parties see how the court has construed the claims.
Summary judgment motions are typically prepared after discovery is complete but before trial preparations begin. At this stage, both sides are deeply familiar with the strengths, weaknesses, and exposure their case carries. The risk profiles are clearer than at any prior stage.
The challenge is that by this point, the parties have invested heavily, financially and emotionally in their positions. Entrenchment is common. Even so, the period around summary judgment is often fertile for mediation: the case record is complete, the issues are defined, and the cost of proceeding to trial is clearly visible to both sides.
Mediation immediately before or after trial is less common, but it should remain on the table throughout. By the eve of trial, all parties have invested heavily in the cause, and the mindset is typically that both sides are ready for and expecting the finality of a jury verdict.
But a jury’s decision is not the end of the process. The non-prevailing party can seek relief from the trial court through post-trial motions, and then from the Federal Circuit on appeal. Post-trial motions can take months to resolve. An appeal may take years and if the decision is reversed, the entire process may start over. Mediation should remain an option from the day the case is filed until the day it is finally resolved.
Patent cases are complex legal documents mixed with complex technology. Patent litigation has developed a vocabulary all its own and has evolved into one of the most specialized areas of federal practice. A mediator who lacks substantive experience in this field cannot provide the one thing that makes patent mediation most effective: a credible, informed perspective on each party’s position.
The right patent mediator brings genuine familiarity with the field having claim construction standards, prior art analysis, damages methodologies (reasonable royalty, lost profits), the role of PTAB proceedings, and the realities of Federal Circuit appellate practice. With that expertise, the mediator can help parties understand what they face: the real strengths and weaknesses of their positions, the realistic range of outcomes, and why a negotiated resolution often serves both sides better than the alternative.
Only with this level of expertise can a party be confident that the decision to settle or not settle, is well-founded and right for their specific situation.
Brian Gilchrist brings exactly this background to patent mediations in Orlando, Central Florida, and throughout Florida. Schedule a consultation to discuss your patent matter.
Brian Gilchrist’s patent mediation practice is based in Orlando and serves parties, patent attorneys, and in-house counsel throughout Florida. He regularly handles patent disputes involving parties in Tampa, Miami, West Palm Beach, Fort Lauderdale, Sarasota, Melbourne, Fort Myers, Ocala, and Tallahassee. Dedicated location pages for these markets are coming soon.
Patent disputes often involve parties in different states or countries also in-person and remote mediation formats are both available to accommodate the needs of the parties and their counsel.
There is no single best stage as the right time depends on the specific facts and dynamics of the dispute. Pre-suit mediation is most cost-effective but requires good-faith information sharing. Post-Markman mediation offers a strong information-to-cost ratio. Summary judgment timing gives parties full case visibility. The key is having a mediator experienced enough to identify when each party is genuinely ready to explore resolution, and to help them get there.
No. Patent mediation is a voluntary, confidential process in which the parties retain full control of the outcome. A settlement is only reached if both parties agree to its terms. Nothing said or offered during mediation can be used against a party in subsequent litigation if the mediation does not result in settlement. This is one of the key advantages of mediation over arbitration or litigation.
Most patent mediations are conducted in a single day, though complex disputes may require multiple sessions. Pre-session preparation by the mediator for reviewing briefs, understanding the technology, and identifying the key issues significantly improves the efficiency of the session itself. If the first session does not produce full resolution, a skilled mediator will remain engaged, continuing to work with the parties until the dispute is resolved.
Parties should arrive with a mediation brief prepared for the mediator, a concise summary of any expert positions (not full Rule 26 reports), a decision-maker with full settlement authority, and a realistic internal assessment of the settlement range. Technical summaries to claim charts or product comparisons that communicate key technical points quickly are more useful than dense expert declarations. See the Preparing for Mediation page for a full pre-mediation checklist.
Yes, and this is one of mediation’s greatest advantages over litigation. A court can award damages or an injunction. A mediator can help parties structure licenses, cross-licenses, co-existence agreements, royalty arrangements, or technology-sharing deals that produce outcomes a court judgment cannot. For many patent disputes, particularly between companies with ongoing business relationships, having a creative licensing arrangement is far more valuable than any courtroom verdict.
Brian Gilchrist brings decades of experience in intellectual property litigation, including patent, trademark, copyright, and trade secret matters. He is a Florida Supreme Court Certified Circuit Civil Mediator and has the substantive background to engage credibly with complex patent claims, technical subject matter, damages models, and the full arc of patent litigation. His practice is based in Orlando and serves clients throughout Florida and nationally.
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