September 11, 2015

“What Are Your IP Litigation Landmines?,” Law360, September 11, 2015

Scorched-earth tactics, “misunderestimating” juries, and playing “cutesy” when responding to discovery were but a few of the litigation landmines discussed recently by IP Law360’s Voices of the Bar panel. One top litigator even took to poetry to share her thoughts on the subject …

Question: What tactics or strategies are landmines that litigators should avoid when trying intellectual property cases?

David L. Suter, Patent Attorney and Principal, Harness Dickey
Former Associate General Counsel for Patents, Procter & Gamble Co.

In my view, the landmines ignored in the run-up to litigation — in a patentee’s IP prosecution and enforcement strategy, or in an accused infringer’s risk avoidance strategy — may affect the ultimate outcome more than the particular tactics employed once one is in a litigation posture. That said, a troublesome feature in much litigation is the seeming willingness of parties to assert thinly supported positions or engage in guerilla tactics in the name of zealous representation. While such tactics take a toll on the opposition, and might meet with some success, they frequently undermine the credibility of counsel and parties in the ultimate resolution of litigation by settlement or in court, and needlessly inflate the costs for all concerned. Furthermore, such tactics, which many would assert are a hallmark of “patent troll” litigation, do not well serve the IP community in general. Indeed, the harassment factor of patent litigation has certainly been a motivation for many of the legislative and judicial constraints recently imposed on patentability and enforcement. Broader concerns about tactics are not going to drive the decisions made in any given suit. But they reflect landmines that have been laid far outside the context of any specific IP litigation.

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