Montana Code 80-5-604. Mediation required before judicial action
80-5-604. Mediation required before judicial action. (1) Except as provided in subsection (8), a claimant shall seek mediation before seeking judicial relief regarding a claim that a grower has planted, grown, or retained seed or any plant part from a protected plant in violation of the intellectual property rights of another person.
Terms Used In Montana Code 80-5-604
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Grower: means the person responsible for planting and managing a crop on land where infringement of an intellectual property right is suspected to have occurred. See Montana Code 80-5-602
- Person: means an individual, firm, association, corporation, partnership, the state, a subdivision of the state, or any other form of business enterprise. See Montana Code 80-5-602
- Property: means real and personal property. See Montana Code 1-1-205
- Protected plant: means any plant part or material, including but not limited to seeds and genetic traits, that is patented by the U. See Montana Code 80-5-602
(2)The claimant shall notify the grower by certified mail and shall also advise the department of the intellectual property claim.
(3)(a) A mediator chosen pursuant to this section must:
(i)be selected and agreed upon by the claimant and the grower;
(ii)be an attorney; and
(iii)possess the necessary skills and qualifications to be a mediator.
(b)Preference must be given to attorneys with experience in intellectual property claims.
(4)(a) The department shall maintain a list of qualified mediators willing to perform mediation under this part. Both parties to an action may suggest names of a mediator as soon as the grower and the department are notified of the claim. The parties are not limited to using mediators from the department’s list.
(b)The parties shall exercise good faith and diligence in selection of the mediator. If the parties exercise good faith and diligence and are unable to agree upon a mediator within 90 days of notice to the grower, either party may seek judicial relief.
(5)(a) The selected mediator shall schedule mediation to begin within 30 days at a location agreeable to both parties. The parties shall conclude mediation within 30 days of commencement of mediation unless the parties agree to a longer mediation period.
(b)The parties shall share equally in the costs of the mediator and mediation unless a different cost-sharing arrangement is agreed to by the parties.
(6)A mediation that results in agreement between the claimant and the grower must be documented by the mediator and signed by an authorized representative of each party. The mediator shall retain an original copy of the signed agreement. The agreement is binding upon the claimant and the grower.
(7)The deliberations and the outcome of the mediation may not be made public unless agreed to by the grower and the claimant.
(8)The requirement for mediation does not apply to a claimant seeking judicial relief to conduct sampling pursuant to 80-5-603 and may not be used to delay the ability of a claimant or grower to obtain samples. An action filed to secure evidence following a grower’s refusal to allow entry does not violate the mediation requirements of this section.