Patent Enforcement in an Uncertain World: Widespread Infringement and the Paradox of Value for Patented Technologies

Abstract

In order to begin developing a base of paying licensees in the context of widespread infringement, IP owners must sometimes significantly discount licensing terms in their early negotiations – with a view that successful licenses, even at a relatively low price, will deliver value by buttressing the credibility of the IP, provide a source of cash to fund subsequent enforcement actions, and (perhaps) clarify the boundaries of the IP rights. Fuzzy IP rights and contracting difficulties pose interesting licensing and damages issues in the context of widespread infringement.