The phrase "negotiation is ubiquitous" has been used countless times by negotiation scholars, corporate executives, and cognitive psychologists.' At its most basic level, negotiation is simply a communication between parties when one party wants something from the other. In the legal setting, parties use negotiation to attempt to divide up limited resources, reach a settlement and attempt to execute a contract. Even procedures as mundane as filing for a patent in the United States can, and have been, described as a complex negotiation.4 However, while many practitioners describe responding to the United States Patent and Trademark Office (USPTO) as a negotiation, few practitioners actually treat the process as one. Typically, neither patent applicants, nor their legal representatives, have formal training in negotiation skills or theory. In my time as an examiner, and now as a practitioner, I have seen many missed opportunities to use negotiation strategies to reach a faster and better result.
Patent Prosecution as Dispute Resolution: A Negotiation between Applicant and Examiner,
2014 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2014/iss1/3