Friction & 'Warfighting'

‘Warfighting’ the US Marines book of strategy, defines ‘Friction’ as – “the force that resists all action. It makes the simple difficult and the difficult seemingly impossible.”
The very essence of war (and IP Litigation) is a clash between opposed wills and it creates Friction to a great degree.

Those regularly involved in IP litigation will know what I mean – the simple act of getting a declaration sworn, documents filed, submissions prepared, seem to all carry more friction than they would in the absence of the conflict.

Friction has a psychological as well as a physical impact. I’ve seen a bad morning in court jeopardise an entire case because the lead advocate had raised the ire of the Judge and couldn’t get beyond it (until the next day).

All else being equal, victory then, will go to those who can effectively reduce friction.

Here are some initial thoughts on reducing friction:

  1. Keep the team together, and working as a team.
  2. Prepare, prepare, and prepare – see my earlier article – Global Litigation Strategy and the Art of War.
  3. Understand that friction is inevitable and be ready to handle it.
  4. Be sensitive to friction for your opponent and be ready to capitalise on it.
  5. Have effective systems and procedures in place to minimise mishaps in the heat of (courtroom) battle.
  6. etc

What would you add?

2 Comments on “Friction & 'Warfighting'

  1. One way of reducing friction is to seek to confine it only to those issues on which there is no consensus between the parties. Agreed statements concerning prior art are one way of helping to achieve this.
    A second is the unspeakable suggestion that the disputing parties in patent trials be forced to share a common expert, chosen by their own nominated experts. That way, expert-on-expert violence can be eliminated and we can concentrate on the real issues of infringement/invalidity instead.
    A third is to remind all litigants that every penny/cent/whatever they spend on litigating is a business declsion and that they could have spent the same sum on marketing, product development, paying a licence fee, exiting the market gracefully instead.
    A fourth is to remind litigants that, while IP litigation may be fruitful, persuading the competition authorities that the cartel you and your competitors can construct is beneficial can be even more so  —  and usually generates much less friction.

  2. .JeremyThanks very much – these are great (and entertaining) points.The cartel point is nice – no friction, just the threat of a brick wall if you get it wrong.  (The bricks weighing about a ton and falling on the participants).

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