and emotionally draining. On top of that, very often development or exploitation of the invention under dispute will be stultified by the dead hand of unresolved litigation. That may be the case here: there has not yet been any exploitation by either side, some 8 years after the original PCT application…This sort of dispute is particularly apt for early mediation..”
The stakes can be very high. Each month of exclusivity for a pharmaceutical drug can be worth millions. Moreover, the life cycles for technical innovations are becoming shorter and shorter.
And these are the statistics cited by WIPO (in the source above) on the duration and cost of trade mark litigation in UK and US Courts in 2006:
New Zealand IP disputes fought through the courts can take at least as long to dispose of. Lucas v Peterson was filed in the High Court in February 1999, and the Supreme Court decision was issued over seven years later, in March 2006 (Lucas v Peterson Portable Sawing Systems Ltd [2006] 3 NZLR 721 (SC). The Geostel litigation has been ongoing since 2005 (Oraka Technologies Ltd v Geostel Vision Ltd [2018] NZHC 769).
Another issue with the economics of IP litigation is that damages can be extremely difficult to quantify. As Victoria University Associate Professor Susan Corbett has stated:
“Arguably, an intellectual property right can be precisely valued in only two situations: when it expires, and when a Court rules that it never existed in the first place. In both instances, the value of the intellectual property right is zero.”
(“Mediation of Intellectual Property Disputes: A Critical Analysis”, NZBLQ, March 2011, citing: Kevin Lemley “I’ll Make Him an Offer He Can’t Refuse: A Proposed Model for Alternative Dispute Resolution in Intellectual Property Disputes” (2004) 37 Akron L Rev 287 at 291).