A patent challenger who succeeds in defeating a patent wins spoils that it must share with the world, including all its competitors. This forced sharing undercuts an alleged infringer’s incentive to stay in the fight to the finish – especially if the patent owner offers an attractive settlement. Too many settlements, and too few definitive patent challenges, are the result.
Miller suggests that a litigation bounty delivered to the defendant could offset for the free-riding problem. In a further paper, Miller plans to expand his proposal to include a “patent attack bloc” that could allow defendants to better pool resources and rewards.