Timing May Not Be Everything

In love and in IP warfare, timing may not be everything, but it can be very important.

I recently consulted on an IP war between two companies. My client had had a significant bad outcome on the defense in the first case to get to trial. Our analysis of the seven ongoing cases showed that with the back and forth in the remaining cases, they would get to a total expected dollar break even in five years or so. The last case, in which the client is the plaintiff, is, on an expected value basis, a big win. Given the recent big win for the other side and the very distant threat of a significant loss, they were not inclined to negotiate an overall settlement and so all of the litigation and the accompanying costs are continuing.

That final case expected big win for the client as plaintiff had been delayed on our appeal of a pretrial ruling that, while not disastrous, was not favorable. However, pursuing that appeal before trial postponed the ultimate resolution (if there is such a thing) of the case off by at least 18 months. Our analysis showed that, again on an expected value basis, winning the appeal ¬†added about 20% to the value of the case, not insignificant. However, foregoing the appeal and speeding up the schedule might have moved the other side to negotiate an overall settlement. We could have analyzed that decision, but unfortunately it was made well before we were consulted and at that point, there were only a few months to be gained which wouldn’t have changed anything.

Take-away: When engaged in an IP war, while it is important to maximize the value of each case, timing issues – often made apparent by an analysis of all the cases – can lead to different decisions in individual cases.