INTRODUCTION

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to
them how the nominal winner is often a real loser -- in fees, expenses, and waste of time.1

One aspect that the Indians must acknowledge is that the British rule has given to us, many
robust laws, a significant amount of which are still in existence without any amendments being
made. The evolution of courts system in India has served its own merits and demerits. The courts
systems lead to several years of waiting in order to be awarded justice. The clients had to pay a
hefty amount to their respective litigant and court room proceedings also ensured the same.

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. They
could not be blamed for this as they are mostly retired judges of courts. Going further down the
line, when an award is published, it is more or less implied that it will get challenged in the
respective courts and that may lead to another several years to be resolved. The Arbitration and
Conciliation act has not helped much as the Supreme Court has rolled back limited grounds of
appeal by opining 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
parties’ 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. Also during a proceeding of a
court, if the judge feels that there can be a settlement between parties, he may order for going
through mediation sessions as prescribed under section 89 of the Civil Procedural Code, 1908.2
Rule 1 B states that once parties have opted for an alternative forum, they are said to appear
before such forum on the prescribed date. Under Rule 1 C the officer of the Forum can refer the
matter back to the court, if he feels the need of so.

However, the field of Intellectual Property involves several disputes of very technical nature;
therefore mediation to reach this field has taken time. But with evolution of the mankind and a

1
Abraham Lincoln , Notes on Law Lecture, Dated July 1, 1850.
2
New rules in order X were inserted in consequence to the insertion of sub-section (1) of section 89 ( New rules
namely 1 A, 1 B , and 1 C have been inserted by the amending act.
shift from agrarian society to a modern one, mediation has reached this field too and will
continue to grow in 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
farfetched. This is the reason why the researchers have chosen to right on this topic as it is still
pretty raw in the modern times and involves greater scope for research in this specific field. 3

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 a 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 Study and Development of Legal Systems [ISDLS]. Relevant information were
gathered and relevant amendments were suggested to the legislation. 4

The first training session for mediators was conducted in Ahemdabad in 2000 by the ISDLS.
Later, several workshops were conducted by the Institute for Arbitration Mediation Legal
Education and Development (AMLEAD). In 2003, the Gujrat Law Society introduced a
certificate course in r "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 9th April, 2005. This was the first mediation centre that was court
annexed 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 and till date have been proving their worth in
relation to compromising and reconciliation whenever there is a dispute.5

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

3
4
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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, work place, community, family matter,
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.
6
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

6
2010 (8) SCC 24.
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.7
Thus the question is debatable as to whether a particular person has copied a work unlawfully, or
his work is derived from the copy righted work.8 The case generally depends upon the fact that
whether there is substantial similarity in the material facts. To test that in cases of book 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.9 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.10 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.11

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.

Trade Mark and Trade Dress Disputes

7
Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d, 832 837 (Fed. Cir. 1992)
8
Ibid.
9
Shaw v. Lindheim,919 F.2d 1353 (9th Cir. 1990)
10
John R. Kahn, Negotiation, Mediation and Arbitration in the Computer Program Industry: Why play hardball with
software?, pt. III B (1989)
11
J.E Grenig, Alternative Dispute Resolution$ 1.2 (2d ed. 1997 & Supp. 1998).
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 a specific amount of confidentiality that the parties are supposed to
maintain once a particular trade secret is obtained and out, it tantamount to infringement and
such disputes may involve intricacies that are not possible for a judge’s knowledge, therefore a
mediator having specific knowledge about Intellectual Property, will be able to help in a better
manner.12

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 the source code and object code of
a 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 other 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 or copies an original work covered under 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 rights and moral rights.
Economic rights are the ones which can be bought sold and licensed while moral rights are the
ones which are only given to the original creator and cannot be transferred; 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.13

Patent Related disputes

Patents are the proprietary rights over an invention for a certain period of time, typically 20 years
giving him a monopoly over the invention. Issues occur when a third party infringes the

12
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monopoly right of an individual. The issues get more technical when the defendant to such
dispute files a counterclaim for patent invalidity. With mediation, parties can come together
within one roof and reduce both of them to a common agreement as it may be pretty difficult for
the judges to know about the technicalities.14

Domain Name

Though trademark and domain name might be similar in some aspects, they are different in the
manner in which they are governed by various laws. While different trademarks could be
registered in different countries in different 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.15

JUDICIAL APPROACH IN INDIA WITH REGARDS TO IPR DISPUTES AND

MEDIATION

The case of Salem Advocate Bar Association v. Union of India16 firstly gave the meaning and
extent of mediation. The same case led to the 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) Ltd17 is another landmark judgment, giving clarity to the
concept of mediation.

In the case of Shree Vardhman Rice & Gen Mills v. Amar Singh Chawalwala18 the judges stated
that the matters of patents , trademarks, and copyrights , litigation mainly involves parties
fighting about temporary injunction and the process continues for several years and the suit
hardly gets resolved. 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 period of not more than four months.”

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16
17
18
Reiterating the same point in Bajaj Auto Ltd. V. TVS Motor Company Ltd.,19the 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 for the rationale that was given in the case of Shree Vardhaman Rice & Gen Mills.
The court also stated that the order must be followed by all tribunals and courts in a punctual
manner. It is pretty evident how cases with such 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 Anr20, 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 the inclusion of such disputed under the umbrella of
Section 89 of the Code of Civil Procedure, 1908, in order to achieve an amicable solution. The
court drew an analogy between mediation and early neutral evaluation and stated that both the
process might be similar in some sense but the difference is that in mediation, the solution is
mostly initiated by the parties while the mediator only strives towards giving his opinion about
the most amicable solution, whereas in case of early neutral evaluation, the evaluator
focuses on evaluating the strengths and weakness of parties in a solution and then gives his
opinion on a dispute. The court also stated that early neutral evaluation is mostly confidential and
cannot be used by either of the parties against the other. 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.21

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 dwell 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

19
20
21
https://shodhganga.inflibnet.ac.in/bitstream/10603/42957/14/14_chapter_7.pdf
may involve work made of 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 court room 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 several 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 court room 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. 22

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.

LIMITATIONS TO MEDIATION IN IPR DISPUTES

22
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.

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.

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 counter party, they cannot be
compelled for such disclosure. All they can do is relying on the other party’s good faith.23

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 Trade Marks, 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.24

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

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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.25

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. 26

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 county’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

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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 of 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 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.27

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

27
years in the same industry helped the parties to deepen their knowledge. After proceedings, the
parties negotiated directly and closed the agreement.28

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
cost efficient manner in order to deal in consonance with their business. Confidentiality always
remains an integral aspect of any IPR dispute 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 a 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 statue 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.29

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