March 13, 2015

“The Imitation Game,” Asia IP, February 2015

Non-practicing entities – NPEs – consistently file patent infringement lawsuits in federal courts located in the United States. According to the 2013 NPE Litigation Report from RPX, a patent risk management provider, NPEs filed over 3,600 patent-infringement lawsuits, accounting for over half of such actions filed in the country in that year.

While NPE suits may be inevitable for some, companies can take steps to protect themselves when they are named in patent infringement lawsuits.

“In summary, be proactive, not reactive,” says Robert Siminski, principal at Harness Dickey in Detroit. “The best way to protect oneself from NPEs is to have a strategic plan in place before an NPE comes calling. In today’s environment, many corporations have certain procedures in place, depending on the type of NPE making an assertion since NPEs are now part of the cost of doing business. Establish lines of communication with other general counsel and/or chief IP counsel to gauge their willingness to share concepts as to dealing with NPEs.”

Organizations should make it known that they are willing to do whatever it takes to thwart NPEs if their demands are wholly unreasonable. “Because NPEs come in different forms, it is important to first understand who you are dealing with,” Siminski adds. “For this reason, it is important to engage with the NPEs to access what they really want.”

“If it becomes clear that the NPE is a little more than a troll, the target company needs to access the landscape. Are other ‘targets’ being pursued by the same NPE? If so, contemplate a joint approach along with other targets,” Siminski says. “Be quick to engage in invalidity investigations. Be sure to engage with appropriate business units within the organization to make going forward decisions.”

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