General Partner - Future Frontier Capital | Faculty - UC Berkeley | President - IP Checkups | Investor | VC Advisor | IP Strategy & Analytics Expert
This analysis, at least anecdotally makes sense to me. In many situations, infringe and holdout is the least painful option for large infringers. The system enables it. - The plaintiff must allocate the time and $$ to assert, taking time and $$ away from selling and developing products. Even if they engage litigation financiers they are limiting their upside potential. - The infringer continues to infringe while employing stall tactics or simply relying on the painfully slow, overburdened legal system. - The cost benefit analysis for infringers - "infringe and pay lawyers" typically outweighs the cost of design around or license. - Enhanced damages and injunctions are rare. - Litigation insurance products reduce risk all around. "The Marcum report shows that there is indeed something wrong with the patent system in the United States but it’s not excessive litigation or patent trolls. The real problem is the inability of patent owners to enforce their rights against infringers. Given the difficulty of obtaining injunctive relief and the limited enhancement of damages, it is unsurprising that predatory infringement has become a standard business practice when, at worst, all an infringer can be expected to pay is a reasonable royalty and, at best, nothing at all."
Interesting analysis...
