IP: Finding the factors in enforcement and monetization of patent assets

Taking a hardline stance can result in potentially unpleasant outcomes for the patent owner

When considering enforcing patent rights through litigation, it is important to remember that a patent grants a negative right to its owner. In other words, a patent prevents others from making use of the protected innovation. In order to optimize the results and enhance the outcomes of any enforcement actions, companies must have realistic and practical expectations. Almost all patent litigation settles before the outcome of a trial. This is ultimately a proper result since all patent disputes at their heart are business disputes. They are about money and achieving an enhanced competitive position in the marketplace. As such, personal animus should have no place in the dispute.

The difficulty in taking an unreasonably hard stance in patent litigation is that such a position may very well result in two potentially unpleasant outcomes for the patent owner. First, if the defendant perceives the litigation as a “fight to the death” over their infringing product, they will have no incentive to settle and seek to continue the fight beyond any trial and through the appeals process which can drag the proceedings on for many more years and increase the costs significantly. This is especially true if the infringing product is critical to the defendant’s business survival.

Contributing Author

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David E. Mixon

David E. Mixon is a partner and registered patent attorney with Bradley Arant Boult Cummings LLP (Huntsville, Ala.). He can be reached at

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Contributing Author

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David Vance Lucas

David Vance Lucas is a partner and an IP attorney with Bradley Arant Boult Cummings LLP (Huntsville, Ala.), with a focus on strategy, enforcement...

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