The Norwegian fairy tale “Three Billy Goats Gruff” was far ahead of its time and the moral of that story has a very relevant, modern application. In short, the story introduces three goats that want to cross a river to eat some luscious grass. To do so, however, the goats must first cross a bridge; under which lives a fearsome troll, who is so territorial that he eats anyone who dares to cross it. By working together, the goats are able to plot against the troll, and ultimately knock him off of the bridge. After knocking the troll off the bridge, the three goats lived happily ever after. So, if these goats can figure out how to get rid of trolls, why can’t sophisticated companies do the same?
One of the biggest fears for any company is the danger of an event that is highly unpredictable and cost intensive. This fear is further magnified when the danger poses a risk of preventing the company from making, using or selling their core goods and services. In many cases, it is easier and more cost effective to just settle with a patent assertion entity (PAE), often pejoratively referred to as a “patent troll.” Companies sometimes prefer to settle due to the inherently defined nature of settlement. These issues are exacerbated when patents are asserted, mainly due to the: a) highly technical nature of many patents; b) potential for inventive obfuscation; and c) lack of finality with respect to scope, considering that claim construction does not occur until later in the litigation process. Indeed, from the company’s perspective, settling early for a “reasonable” amount comes down to making a business decision. Thus, the cycle persists, and trolls continue to troll.
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