The New Competitive Patent Landscape and Potential Resurgence in Competitor-to-Competitor Litigation: Why Strategic Prosecution Matters More Than Ever

This article was originally published as a Sterne Kessler insight. 

In recent years, patent enforcement between operating companies has been overshadowed by non-practicing entity litigation. The Patent Trial and Appeal Board (PTAB) loomed large as a challenger-friendly forum for invalidation, litigation funding was portrayed by both trade news and other media as solely a non-practicing entity phenomenon, and many operating companies shifted resources from quality to commodity in their patent filings. Corporate budgets sought to “do more with less.”

But that landscape is ripe for change. The past year’s developments both at the PTAB and in the broader patent ecosystem have created a favorable enforcement environment. As a result, competitor-to-competitor litigation may once again be attractive for companies looking to assert market dominance or capture market share. Third-party financing options are also on the table for funding disputes involving operating companies with commercially meaningful IP.

For in-house counsel and businesses that take IP seriously, these developments carry a clear message: strategic, litigation-ready patent prosecution is again a competitive differentiator. Even if a company is not actively planning an enforcement campaign against a competitor, building a portfolio capable of standing up in a courtroom can be a real strategic advantage. And the deterrence effect from a quality patent portfolio can be a meaningful asset for a company looking to pre-empt competitor activity.