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Settlement of Patent Litigation and Disputes: Improving Decisions and Agreements to Settle and License (eBook) |
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The First Book Devoted to Settlement of Patent Disputes. There two reasons for a book devoted to settlement of patent disputes and litigation. One is that settlement is more important than litigation. The effects of patents on people and businesses are overwhelmingly defined by the terms of settlement and license agreements and only rarely by judicial decisions. The other is that the subject of patent settlements has not received the attention it deserves. There are many books on litigation and licensing. Until now, there was no book directed to settlement. Organized in four sections, this resource is designed to help everyone involved improve patent settlement outcomes and processes. Throughout the book, numerous charts and graphs demonstrate the book's key concepts and pertinent data. Many charts are shown in color for ease of use.
Economics of Settlement. Business people deal with patents primarily based on economic results. They decide between litigation and a variety of possible settlements based on which is more efficient, that is, provides the largest gains at the lowest cost given a considerable amount of risk. Hence, Part 1 describes the generally-accepted economic model of settlement decisions adapted to fit patent actions and the settlement options most commonly used in the patent context. Part 1 also describes a model of the decision to license, one possible component of settlement.
Applying the Economic Model. Part 2 shows how this model is applied to help make settlement decisions in particular situations. It explains how to identify the specific facts and estimates that shape each party's settlement decision and translate that information into dollar amounts showing whether various types of settlement are in the economic interests of the parties. Part 2 contains many examples. It shows how to prepare understandable, informative charts showing the dollar magnitudes of the controlling factors from the perspectives of each party, whether the conditions for settlement are likely to be satisfied, and either the financial gap preventing an agreement or the range of financial terms within which settlement is possible. The charts are also useful in managing litigation.
Data on Patent Litigation. Part 3 describes the data the author has developed on how patent litigation works. This data will help people form reasonable expectations about litigation. How frequently are patent actions resolved by trial, pretrial motion, or settlement? How long does it take for patent actions to be resolved by trial, motion, or settlement? When does settlement usually occur? Who wins and loses on trials and motions? Are patent owners as successful as often reported? Did the Court of Appeals for the Federal Circuit really make much difference? Are damages in patent actions as large as advertised and large enough to explain the large number of actions the parties litigated rather than settled? Part 3 also describes data developed by others.
Legal Issues and Settlement. Part 4 describes the law that people involved in settlement need to understand. Law governs the consequences of various ways of resolving patent disputes before litigation and the ways litigation may be terminated. Law defines when potential infringers and licensees may commence declaratory judgment actions, creating barriers to negotiations and agreements. Antirust law defines the legality of settlement and cooperation among patent owners, accused infringers or potential licensees regarding litigation, settlement and licensing. Part 4 describes these laws and ways to adapt settlement practices to the constraints of the law.
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"John Schlicher's book on the settlement of patent infringement disputes is a must read for practitioners who are involved in such disputes. Too often, settlement is viewed as a prerogative. One has to give up something that one would otherwise be entitled to in order to reach an accord. The book makes clear a settlement is nothing more than an agreement. Its value is dependent upon its terms -- not its form. Schlicher points out the advantages that can be achieved by a settlement, when it is contrasted with the alternative of litigation.
The book provides a most useful model of settlement decisions and walks the reader through the use of the model in various situations in order to reach an agreement. Supporting data and the applicable law are also supplied, which enables the reader to draft a form of settlement for his particular dispute.
The book points the direction of accommodation which, depending upon the particular facts of each case, may be in the best interests of all. In any event, it is a primer that all will find helpful."
Hon. Charles B. Renfrew -- Former United States District Judge for the Northern District of California; Deputy Attorney General of the United States; Vice President of Legal Affairs and Director of Chevron
"This is a very sophisticated book about a set of very challenging and very important subjects. John Schlicher's illuminating analyses and comprehensive coverage of the dynamics of settlement in patent litigation are built on a unique blend of more than three decades of experience in practice in the field with a scholar's mastery of relevant economic theory and social science literature.
Don't let the sometimes intimidating appearances of the formulae and graphics that Mr. Schlicher's work includes deprive you of the rich rewards that this book offers to a wide range of readers. The book identifies and tracks the economic implications of a huge range of factors and circumstantial variables that lawyers, business executives, and mediators need to take into account if they are to make reliably-based decisions about whether and how to settle patent litigation. Among many other purposes, litigators and their clients can use this book to construct comprehensive lists of matters to consider and alternative scenarios to explore when making settlement decisions -- substantially reducing the risk that their analyses will fail to take into account any matters of real economic consequence.
One of Mr. Schlicher's most valuable contributions consists of teaching us how to locate the range of possible terms of settlement that deliver net value to both parties. By helping parties locate such zones of net value, good mediators and lawyers can provide clients with both the information and incentives they need to feel centered in their settlement decisions -- and to reduce the risk of unnecessary settlement failure.
This book also presents, in compact form, information that lawyers and mediators can use to educate clients about what really happens in our patent litigation system. There is a powerful 'sociology' of patent litigation -- a sociology that has remained constant for decades -- that clients who are not repeat players are not likely to understand. Mr. Schlicher's book provides lawyers and mediators with a wealth of information about what really happens to cases that enter the court system -- information they can use to sophisticate their clients' perspectives and to increase their clients' comfort with decisions not to push the race all the way through to the finish line.
In sum, Mr. Schlicher's book provides extremely valuable tools and important informational resources for anyone who might be involved in any role in patent litigation."
Hon. Wayne D. Brazil -- Professor, University of California, Berkeley School of Law (Boalt Hall); Former Magistrate Judge, United States District Court for the Northern District of California
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"John Schlicher's book, Settlement of Patent Litigation and Disputes: Improving Decisions and Agreements to Settle and License, is an in-depth "A to Z" treatment of the subjects it addresses, and it should be studied - not just read, but studied - by all lawyers and business persons involved in patent litigation settlements and in patent licensing. It lays out the economic and financial considerations applicable to virtually all patent settlement and licensing decisions. If understood and applied by those involved in settlements and licensing it will lead to better decision making and more efficient and effective outcomes. It should be in the library of every executive or attorney having a responsibility for such activities."
Cecil Quillen -- Research Fellow, University of Richmond School of Law, and Senior Advisor, Cornerstone Research; Former General Counsel of Eastman Kodak, Senior Vice President and Director
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