By Daniel Hunter
Intellectual property disputes of all kinds can be both complicated and costly for small businesses. The government have recognised this by introducing a newly adapted and modernised mediation service, which Lord Younger announced recently.
The new service is an attempt to make it both cheaper and quicker for small and medium sized businesses to resolve intellectual property disputes, by enabling them to avoid costly court cases and achieve a mediated solution by alternative means.
One of the chief benefits of the revised service will be the expanded flexibility of access to mediation in this area, with businesses able to access advice through short telephone interviews, reduced mediation fees and a wider range of specialist mediation advisors.
Expert intellectual property solicitor Dr Michael Servian of Freeth Cartwright’s Stoke office welcomed the changes: “Cutting red tape for small businesses and enabling them to resolve disputes more expeditiously is an excellent step forward and a significant improvement in legal provisions for intellectual property. Avoiding litigation in the courts in the first instance is to be advised, and where mediation is possible it will offer significant benefits to clients, in particular to new businesses who will be able to more swiftly deal with disputes without diverting energy from their day-to-day business.
When the IP Mediation Service was established in 2006, it was intended to have the same goals as the current changes. However, it hasn’t been used as much as it was intended and it was limited in its scope. Following the Hargreaves report of 2011, these changes should make mediation a more attractive and less risky route for many small businesses than disputing in court. It remains to be seen, however, how many companies will choose mediation; although, when it comes to the question of recovery of legal costs, judges can be expected to take a very dim view of a company that decided to go straight to court without very good reasons.
For any settlement outside of the court to succeed (whether it is via lawyers operating “behind the scenes”, open discussions between the lawyers, or through mediation), it requires a full understanding of the situation on both sides (the facts, the commercial realities and the law). Competing businesses sometimes fail to trust each other enough to present their necessary information.
One of the benefits of mediation is that it keeps the door open for a solution that suits the parties on both sides of a dispute, such as cross-licensing agreements. This enables both parties to sell their products within the marketplace rather than one eliminating the other.” — Dr Michael Servian, Freeth Cartwright, Stoke
The current Minister for Intellectual Property, Lord Younger, will certainly be hoping that the changes make the mediation service the first port of call for resolving disputes concerning intellectual property. When he announced the changes, he said:
“Mediation can help parties to reach agreements where a court cannot. This can be crucial where the dispute involves small businesses who don’t have the experience of going to court on IP matters or who don’t have the time and resources to devote to litigation. Mediation can help everybody maintain existing relationships and potentially create new business partnerships by avoiding often messy and drawn-out litigation.”
Any cut in red tape is usually welcomed by business leaders and this one is set to be no different. At a time for the economy where innovation is key, the government will be hoping that a strengthened and re-launched intellectual property mediation service will help to protect innovation and fuel growth.
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