Other Solutions

There is no simple solution for defendants. Typically companies use a mix of approaches:

• Patent Invalidation: Proving invalidity is part of any defense strategy. Of course, this only works if invalidating prior art can be located. Smart NPEs litigate patents that are difficult to invalidate. NPEs know that proving invalidity can take a long time, during which defendants continue to spend attorneys' fees and company resources on the validity issue as well as others issues in the lawsuit (like claim construction and infringement).

• Patent Reexamination: Seeking a reexamination at the US Patent and Trademark Office is a strategy pursued by some companies to invalidate a patent. It can delay litigation and discourage other NPEs from suing. If the patent survives, however, it can strengthen the NPE's position.

• Proving Non-infringement: Arguing that the patent does not apply is likewise part of any defense strategy. But proving that the defendant doesn't infringe can take a long time, during which defendants will continue to spend attorneys' fees and company resources on the infringement issue as well as other issues in the lawsuit.

• Defensive Acquisition: Some companies seek to acquire patents to prevent them falling into the hands of an NPE. Companies pursue this approach either on their own or with the assistance of intermediary entities and funds. This strategy is limited: not all NPEs will sell their patents; purchasing patents that are already in litigation is expensive; and there are so many potentially threatening patents on the market that pre-emptive purchase of all potentially threatening patents would exceed the resources available to all funds set up for this purpose.

• Settlement: In most cases, defendants will seek to settle a lawsuit. However, defendants usually act individually, in an uncoordinated fashion, at differing times. Companies often delay settlement approaches beyond the time that would be economically best for the defendant company due to a variety of factors including a company's fear (justified or not) of appearing weak compared to co-defendants.