PHILIPPINES
JUMP-STARTING MEDIATION
Editha Hechanova Hechanova Bugay & Vilchez
In its 2011 annual report, the Intellectual Property Office of the Philippines (IPOPHL) reported that it disposed of 243 inter partes and intellectual property (IP) violation cases. Eighty-nine (37 percent) of these cases were judgments based on compromise agreements resulting from the mediation process that was ‘re-introduced’ in January, 2011.
IPOPHL has been offering mediation services since May 2001, but very few cases were settled through this process. Before 2011, mediation was held on a voluntary basis during the pre-trial stage of cases pending before the Bureau of Legal Affairs (BLA), IPOPHL’s adjudicating arm, and conducted by IPOPHL employees who were trained as mediators.
Challenged by the ever-continuing presence of the Philippines in the US Trade Representative’s 301 report and watchlist of countries with significant counterfeiting problems, in addition to simplifying its rules of procedure in handling cases, IPOPHL improved its alternative dispute resolution capability, and on January 29, 2010, it created its own Mediation Office. However, it was in November 2010 that IPOPHL revised its mediation rules with Office Order No. 154 (Rules of Procedure of Mediation Proceedings), making the referral of cases to the office mandatory, after various consultations with its stakeholders and publication of the rules in newspapers of general circulation.
A settlement period was declared between January 31, 2011 and February 28, 2011, in which mediation fees were reduced by nearly 70 percent to encourage parties to undergo the process. Also, IPOPHL accredited 16 IP practitioners and professional mediators, after giving them intensive training in January 2011.
IPOPHL defines mediation as “a process of settling disputes with the help of a third neutral party called the mediator. The mediator handles the opposing parties and skilfully enjoins them to cooperate in order to come up with a mutually satisfactory settlement of their dispute”.
196 World Intellectual Property Review e-Digest 2012
Office Order No. 154 mandates the following cases as subject to the mandatory referral to the mediation office:
• Administrative complaints for violation of IP rights (IPV), eg, infringement, unfair competition;
• Inter partes cases, eg, trademark opposition, patent cancellation; • Disputes involving technology transfer payments;
• Disputes relating to the terms of a licence involving the author’s rights to public performance or other communication of his work;
• Cases appealed to the Office of the Director General from decisions of the BLA and the Documentation, Information and Technology Transfer Bureau (DITTB); and
• All other cases which may be referred to mediation during the settlement period declared by the Director General.
The parties or their representatives are required to appear at the mediation conference. Any representatives must be equipped with the proper authorisation, such as a special power of attorney, or a secretary’s certificate or a resolution of the board of directors, which must indicate that the representative is empowered to offer, negotiate, accept and decide to enter into a compromise agreement. The parties will be required to sign an agreement to mediate, specify their preferred dates to meet, and manifest their commitment and sincerity to prepare for, and engage in, a meaningful settlement process.
Failure of the parties or their representative to attend the mediation session shall be grounds for dismissal of the case. If there are good grounds for failure to attend, the absent party may be held liable to pay triple the costs incurred, together with attorneys’ fees for the day.
www.worldipreview.com
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