Implementing a Successful Licensing Strategy in an Age of Efficient Infringement
Efficient infringement is a business calculation whereby technology implementers decide it will be cheaper to use patented technology without paying than to license and pay a fair royalty to the patent owner. This calculus is generally made by large entities who realize there are a certain number of patent owners that will simply not assert their patents for one reason or another, frequently because they don’t have the money to do so. Then there is another subset of patent owners that will assert their patents but will not win. The calculation progresses to realize that there is a small group of those who are likely to both assert patents and prevail, thanks to all the hurdles put in place (i.e., patent eligibility challenges, the Patent Trial and Appeal Board, winning on appeal, etc.). The calculation further recognizes that even if a patent owner prevails, a permanent injunction is extremely difficult to obtain, and in some cases will be an impossibility as the result of the Supreme Court’s decision in eBay v. MercExchange. Still further, any damages awarded are extremely likely to be reduced on appeal to the Federal Circuit.
This cold-hearted business calculation to use intellectual property without paying has gone on for decades, but with the increasingly weakened state of the U.S. patent system since 2006, it has grown progressively worse.
This panel will, among other things, address:
- Current best practices for building a patent portfolio strong enough and valuable enough to have licensing potential;
- The proper asset mix for a worldwide patent portfolio;
- Whether an enforcement strategy is really required in order to achieve licensing deals in 2021; and
- Strategies for implementing an enforcement campaign and how best to proceed initially.
One hour of MCLE requested in Texas.