Heather B. Repicky and Benjamin L. Mack, partners in the firm's Litigation department, published "Super Trolls: NPEs Continue to Target Banks" in Massachusetts Banker magazine's First Quarter 2014 edition. The article discusses how non-practicing entities (NPEs), also known as patent trolls, are getting increased attention in the banking and financial services industries. NPEs, often sophisticated companies that have developed long-term strategies to monetize their patent portfolios, are actively litigating against banks and broker-dealers in patent cases across the country, involving everything from basic ATMs to security for mobile banking and online trading.
Heather and Ben note that while there is a wide spectrum of NPEs in the market and not all deserve the derogatory "patent troll" moniker, five simple steps will help in successfully defending against patent infringement claims by NPEs, such knowing who your plaintiff is by researching the NPEs litigation history, and considering your options at the United States Patent and Trademark Office – an alternative forum to dispute patent validity.
They also point out that a unique non-infringement defense or knowledge of an obscure invalidating device can make one stand out from the crowd; that a strong offense early on in litigation may be the best defense, and that if a litigation strategy fails, one needs to be flexible, as the cost of litigation may far exceed the cost of a license.
This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.
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