The Defensive Patent Playbook

Abstract

After the dot-com bubble collapsed, non-practicing entities (“NPEs”) emerged on the patent playing field. Patent thickets and aggressive litigation by non-practicing entities turned the patent system on its head. As a result, companies developed an array of defensive options and strategies to counter the changing use of patents. However, the tactics needed to navigate the patent system evolved as the landscape shifted. The analysis below follows the chronological evolution of defensive strategies and sets forth a defensive patent playbook for practitioners in the patent field.The analysis below follows the chronological evolution of defensive strategies and sets forth a defensive patent playbook for practitioners in the patent field.This Note proceeds in four parts. Each Part reviews the development of the patent landscape as a necessary backdrop for an analysis of various defensive patent plays. The issues from each era cumulated to shape the current patent landscape. Part I evaluates early defensive methods used to navigate webs of overlapping patent rights. Part II describes the rise of NPEs, changes in substantive doctrines, and additional strategies introduced in the wake of the dot-com bubble. Part III discusses the current trend towards increased monetization, and assesses defensive options in the current landscape. Part IV explores defensive tactics that may become widely used in the future.