From our friends over at RPX (disclaimer: I consulted with them in an IT capacity a while back), we have this analysis of the Fight or Flight response to a troll: Quantifying the Fight Hard Strategy.
This is interesting data because it sort of contradicts what I have been a huge proponent of, which is pooling resources to fight these guys. Except not completely because this analysis assumes, among other things, an individual fight. So, you know, no pooling necessary in that you have one company fighting one troll, one case at at time. Indeed, it doesn’t appear that that is a cost-effective strategy when you look at their analysis. That said, the words “only possible” give me pause in this quote:
We will assume it is only possible to establish a “fight hard” reputation by refusing to settle all or nearly all NPE litigation, so the company will take almost every case all the way through trial.
I actually think, rather, that you can establish a fight hard reputation by doing things prior to the litigation stage that don’t include settling, and that those things in fact do include consorting with other
troll victims assertion-ees. But we’ll get to that later in favor of looking at this statement:
Now compare this result if the same company took a “settle sensibly” strategy that assumes an average settlement of $1 million and $100,000 in legal costs per NPE case.
The problem I see with a “settle sensibly” strategy is that I have kids who were once three year olds. Ever try to “settle sensibly” with a three yr old? If you have, then you know that this very often is what happens. (Second disclaimer: yeah, he’s mine.) There can’t be any wiggle room, you can’t show any signs of weakness or they will take over your life. No, you gotta set the law down straight from the minute they stamp their little feet and fold their arms over and hold their breath and possibly even stick their tongue out at you. They have to know that when they do, their mother will take a picture of it and sell it for a profit to pay for their college education. Mom, for the win.
Likewise with trolls, no matter how sensibly you try to approach it, when you settle with a troll it sends exactly the wrong message. Namely, that they’re winning. Let us not forget that the trolls don’t really want litigation any more than you do. What they want is your money, lots of it, and they will do what they can to get it. It’s their business strategy. If you settle, they win. If you go to trial and are in the EDTX, they win. If you go to trial somewhere else and you win, they still win because they’ve dragged you to court and anyone else they’ve tried to shake down will see what it cost you and won’t want any part of that, nothankyouverymuch, so they’ll settle, and probably for a higher amount than they otherwise would have.
One could argue that with the advent of companies like RPX taking patents out of play and companies like Article One Partners who are working like a boss to invalidate patents at the prior art stage, settling will become harder for the trolls because companies might not have to fight because of the former or not go to trial at all because of the latter.
Or, as hinted at above, one could also argue that trolls might use this very “Fight Hard” strategy analysis to coerce even more companies to settle (sensibly or not), and by that of course I mean 1000% in the troll’s favor. So there’s that possibility.
The best place to go is to the front of the line. Stop the problem the very instant it starts. And when is that? At the moment you check your inbox at work (or the guy with the mail cart comes by, assuming those didn’t go the way of the horse and buggy) and you’ve been sent a Nastygram. That right there is the tipping point and the time to take action. I further happen believe the action that should be taken is collective.
I have a solution that will help, it’s part of the “we’ll get to that later” statement even though I know no one likes a tease. It’s just not go time yet!