While the majority of U.S. patent litigation is now NPE litigation (and has been since at least 2009), litigation between operating companies continues to occur at roughly the same rate as it has for the past 20 years. (So much for the idea that IPR or eBay destroyed the ability for patent owners to enforce their intellectual property.)
These two categories of litigation are often fundamentally different, occurring for completely different reasons. For every Smartphone War, there are dozens of cases that are fundamentally about getting a competitor to pay a little more for the license they were probably already discussing taking. That’s true in cellular technology, but it’s true in a lot of other areas as well, ranging from semiconductor manufacturing to automotive to digital video. It’s relatively rare for an operating company to file a lawsuit without discussing the possibility of a license first—after all, patent litigation is expensive and if you can avoid it, why wouldn’t you? (This is also why large companies employ entire teams of people whose sole job is to make deals to license patents—at least, once they’re aware those patents exist and have a chance to evaluate infringement.)
But there are a couple of considerations that can make it hard to get to an agreement as to that license. These considerations can result in litigation being filed—and often quickly settled after the parties refocus on negotiations, realizing that they’d far rather have a deal than spend tens of millions on protracted patent litigation.
