Why consider selling?

Many patent owners have begun to consider sale as an alternative patent monetization strategy because of the following reasons:

Increasingly, patent litigation is difficult, expensive, and risky
Patent litigation can take years, or even decades, and changing and inconsistent court decisions are notorious.

Anti-patent publicity, orchestrated by patent infringers as an intentional strategy, has led to a number of court decisions and new laws weakening patent protection in the U.S. For example, patent owners today face:

  • a more flexible standard for invalidating a patent as “obvious,”
  • an increased risk that attempts to negotiate with an infringer will trigger a lawsuit before a patentee is ready,
  • costly post-grant opposition proceedings,
  • a reduction in the availability of injunctions against patent infringement,
  • limitations on the number of defendants that can be included in a single lawsuit,
  • a loss of the ability to rely on being the first-to-invent because the U.S. has switched to a first-to-file system,
  • a narrowed scope of what is considered patentable subject matter,
  • an increased risk of having to pay defendant’s attorney’s fees, and
  • a greater likelihood that patent claims will be construed more narrowly.

The weakening of the U.S. patent system has taken a toll in actual court cases, to the detriment of real inventors.

Increasingly, patents are not needed to protect specific products against competition
Companies have traditionally obtained patents for purposes of protecting specific products against market competition from interlopers. Without a patent, after all, the inventor can operate as a free testing facility for others – if the product fails, the cost is the inventor’s, but if the product succeeds, the competition can copy the idea and compete.

Increasingly, however, companies and individual inventors are finding themselves with patents that are not needed to protect specific products against competition. For example:

  • A product, product line, or whole business may have failed, leaving behind valuable patents
  • A company may have shifted strategy, selling or cutting a business, leaving behind valuable patents
  • A company may have acquired a smaller business, finding itself in possession of valuable patents unrelated to previous products
  • Research direction may have changed, leaving valuable patents in a field no longer of use internally
  • Product development may not match the time period of maximum patent protection, such as when competitors practice an invention before the company’s products are released
  • For any of those reasons, the patents may be valuable but not to the patent holder.

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