Joint Defense in Patent Cases May Leave One Player Standing

August 07, 2009

Michael Sacksteder, partner in the Patent Litigation Group at Fenwick & West LLP, was quoted in The Recorder article "Joint Defense in Patent Cases May Leave One Player Standing."

When a patent holder files an infringement claim against multiple offenders at one time, attorneys of co-defendants often join forces to share information and create a joint defense agreement to utilize more force against a common battle. Despite good intentions, it's more often than not that a majority of the defendants settle leaving just one party left in battle in court alone, or the strongest defendant settles leaving the majority of the defendants left to trial with less information and bigger bills.

To prevent these "rate-trapped" situations, defendants are pooling together their money to hire a single law firm to represent them as a group. This tactic reduces the chances that one party will be left alone with a trial. However Sacksteder warns clients that their interests may be lost if the firm has to fight for the great good of the group. "It could be [that] a claim construction issue comes up, and claim construction A is good for one client, and claim construction B is good for [another]," Sacksteder said. "You definitely need to have an oar in the water when you're in one of these joint defense groups," he said.