Evaluating the PTAB Threat to Formulate Patent Assertion and Funding Strategies

Evaluating the PTAB Threat to Formulate Patent Assertion and Funding Strategies

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Over the last several years we have seen the return of large patent infringement verdicts, and verdicts that have also enhanced damages for willful infringement. These cases have not yet made their way to a final resolution at the Federal Circuit, but in at least one high-profile matter the patents that were the subject of a $2 billion verdict are now being challenged at the PTAB.

Since its inception, the PTAB has always been viewed by patent owners as a first hurdle to monetization, and now in the wake of the OpenSky saga — where Director Vidal allowed the IPR to continue despite being started for the purpose of extorting the patent owner — the PTAB is becoming a final blockade to monetization.

How is this landscape changing the way patent owners are evaluating and formulating assertion and monetization strategies? How are patent litigation funders evaluating risks? Is it better from a funders perspective to already have an IPR instituted? When does an IPR look like too much of a risk? What size patent portfolio is necessary to begin to minimize the risk profile? How do you pick which companies to target first with an assertion campaign? Are contingent fee attorneys still engaging in representation, and if so under what circumstances? In other words, how is the PTAB affecting assertion and monetization strategies circa 2022 and into 2023?

Materials*

Patent Litigation Financing: Fighting Efficient Infringement with Funding

Patent Litigation Likely to Rise with More Litigation Financing Opportunities

Valuing Intellectual Property in an AIA World

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