Litigate to Avoid Litigation

I spent time at the LES World IP Day celebration on April 26.  It had lots of interesting discussions.  Toward the end, when I was about to leave – it had gone a bit longer than scheduled – and just as I was getting up from my table, I had to pause.

I love when people net out a truth behind a way we do things that we may not think about.  So the answer to a question about litigation and the legitimacy of the patent system used the concept that “war is politics by other means” – from the strategy classic On War by Clausewitz.  The idea is that litigation is nothing more than a business interaction by other means.  OK, easy to buy that…I have also said that before.  The way I heard it explained next was fun.  It basically went like this.

Because companies fear litigation – anti-trust, issues of disclosures and confidentiality – the types of business interactions they might like to have to consummate meaningful licenses with competitors and partners, mainly full disclosures, are highly risky…often too risky considering the stakes.  So the solution is to litigate in order to get full disclosure in discovery under the umbrella of the court.  Put another way, you litigate in order to avoid litigation.  Put yet another way, if you are an enterprise seeking to enter a value chain of product solutions that involve many IP protected complementary elements, then you better expect to be doing some litigation.  That may be old hat for people in the system, but for a new entrepreneur with a great idea and no IP experience, this could come as an unpleasant surprise.  That’s the system.  The commercial existence of products like smartphones and computer tablets that have IP from dozens to hundreds of enterprises indicates that maybe the system works.

Image credit: Hemera

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