Strategic Responses to Patent Trolls

In their "Basic Framework for Effective Responses to Patent Trolls" Steven Gardner and E. Danielle Thompson Williams write that "in responding to a patent troll, it is important to: (a) know the business model and the patent troll’s current position on the time line of that model; (b) recognize the unique objectives of the patent troll; (c) identify the unique concerns of the patent troll; and (d) know your client (including its objectives, exposure, tolerance for risk, and view of litigation). . . . Often an effective response to a patent troll is one that increases its uncertainty, doubt, and fear such that the patent troll concludes that the best business decision is to end the accusation or to resolve the accusation with terms favorable to the accused company."

Here are a few of the strategic responses and scenarios that they discuss in this regard:

• Point Out Differences with Previously-Licensed Products.
• Present Strong Prior Art Early.
• Seek Another Venue; Explore a Stand Still Agreement.
• Look For Ways Around the Most-Favored-Licensee Clause.
• Use the Threat of a Very Interested Indemnitor.
• Consider Fighting Tooth and Nail.
• Search for and raise issues that require due diligence on the part of the patent troll’s attorneys
• Consider whether your client is willing to agree to a license at a lower fee in exchange for
  allowing the patent troll publicize your client’s name as a licensee.
• Consider counterclaims (patent infringement, inducement of patent infringement, unfair
  trade practices, antitrust, etc.)
• Consider acknowledging validity in exchange for a reduced license fee.
• Consider whether the patent troll might be interested in the right to enforce your client’s patents.