What the GoDaddy Verdict Still Illustrates About Patent Risk

The $170 million jury verdict against GoDaddy in its dispute with Express Mobile continues to offer important lessons for companies managing patent exposure, even after the court set aside the jury’s willfulness finding. While the case may not become the landmark post-Halo willfulness decision some initially anticipated, it still underscores a critical reality of modern patent risk: once a company becomes aware of potentially relevant patents, how it responds can matter as much as the patent itself.

A New Patent Risk Environment

Express Mobile, Inc. v. GoDaddy.com, LLC still offers a useful example of patent risk management in the post-Halo Electronics v Pulse Electronics era. While the Halo decision did not create automatic enhanced damages, it gave courts broader discretion to punish egregious infringement conduct when circumstances warrant doing so. That shift places greater emphasis not only on whether infringement occurred but on how a company behaved after learning of a potential patent risk.

In practical terms, courts increasingly scrutinize how companies manage patent awareness and diligence once relevant patent concerns are raised. A company that can demonstrate it took known patent concerns seriously by investigating the issue and evaluating reasonable defenses is often better positioned than one that ignores the problem until litigation begins.

Even with the court setting aside the jury’s willfulness finding, the GoDaddy case still raises familiar post-Halo questions: what did the company know, when did it know it, and what did it do in response? Those questions can still materially influence litigation strategy, business risk and, in some cases, willfulness analyses.

Awareness Changes the Risk Equation

The law does not require every company to conduct proactive Freedom to Operate reviews at every stage of product development, but once a company becomes aware of a potentially relevant patent, the analysis changes and inaction can become costly.

That is one of the most practical lessons of the GoDaddy case. According to the post-trial briefing, Express Mobile argued that GoDaddy knew of the asserted patents for years yet failed to meaningfully investigate the scope of those rights or develop a good-faith position regarding non-infringement or invalidity until litigation was already underway.

Even when willfulness allegations do not ultimately succeed, companies are often better served adopting a well-documented response process than waiting for litigation to evaluate patent exposure. Conducting a timely investigation once aware of patent risk can significantly improve options. Those options may include documenting non-infringement positions, pursuing invalidity challenges, exploring licensing discussions or evaluating potential design-arounds before exposure grows.

Documented diligence does not guarantee a company will avoid infringement claims or liability altogether. Evidence that a company responsibly evaluated patent concerns, considered defenses, explored alternatives or sought legal guidance, however, may still help demonstrate good-faith conduct and reduce the likelihood of enhanced exposure tied to willfulness allegations.

Balancing Freedom to Operate and Privilege

While the GoDaddy dispute did not ultimately turn on privilege issues, it highlights a broader challenge many companies face once patent concerns are raised: how to investigate risk thoughtfully without creating unnecessary exposure in the process.

Responding to known patent risk often requires legal and technical analysis that companies may prefer to keep protected under attorney-client privilege. Businesses need to evaluate exposure, assess options and make informed decisions, while also being deliberate about how those discussions are conducted and documented. Legal teams should define where and how these analyses are shared and debated to maintain the greatest protections.

Too often, these discussions take place just about everywhere, across scattered emails, informal messages, disconnected spreadsheets, or ad hoc exchanges among business, engineering and legal teams. A more structured approach can help companies evaluate Freedom to Operate issues efficiently, preserve appropriate privilege protections, and demonstrate that known risks were handled responsibly and under proper legal oversight.

The Emerging Standard of Care

These GoDaddy developments do not mean companies must conduct exhaustive patent reviews at every turn. Rather, companies should keep in mind that when a potentially relevant patent is brought to their attention, they should prepare to respond in a thoughtful, timely and well-managed way.

That response does not require certainty; it requires process. Companies that can show they investigated the issue, considered reasonable defenses, evaluated business options and involved the right stakeholders are often in a stronger position than those that wait to build their record only after litigation begins.

Practically, the emerging standard of care is less about perfection than preparedness. Organizations that rely on fragmented or informal approaches may struggle to demonstrate that known patent risks were handled responsibly. Those with structured systems for tracking, evaluating and escalating patent concerns are better positioned to reduce exposure, preserve options and make sound decisions under pressure.

Even with the court setting aside the willfulness finding, the GoDaddy case remains a meaningful reminder that patent exposure is not shaped solely by the merits of infringement allegations. How organizations respond once patent concerns come into view can materially affect litigation posture, business flexibility and overall risk management outcomes. Companies may not be able to eliminate every infringement claim, but they can materially influence the outcome through timely analysis, disciplined processes and informed decision-making.

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