The number of patent infringement actions filed annually in the U.S. has increased close to 300 percent over the last two decades. Statistical studies show that in recent years the portion of patent cases filed by non-practicing entities (sometimes referred to as patent trolls) also has increased.
The underlying strategies for efficiently defending patent cases are the same regardless of the adversary: relentless focus on developing winning themes and arguments; avoiding expenditures on issues that do not relate directly to the strategy for winning; finding and maximizing the effectiveness of great experts; and connecting well with the judge and jury.
2. Be aggressive early in the case
Many patent trolls, represented by contingent-fee counsel, file suit without performing significant diligence on their targets. They are aiming for quick settlements that require relatively little effort; they do not wish to try cases. Even in the absence of clearly invalidating prior art, defendants can drive down the perceived settlement value of a case by being aggressive early in the proceedings—e.g., filing motions to dismiss or transfer; quickly completing a robust analysis and making a persuasive presentation to the troll on non-infringement or other defenses; or immediately initiating discovery that will cause the troll to incur unwanted costs. While delay is ordinarily in a defendant’s interest, being aggressive against a troll can be an effective strategy to secure an early favorable settlement since most trolls are not interested in a fight.