Patent Law Practice Center

Efficient infringers should have to pay

During a recent webinar on the current state of patent valuation, Ashley Keller, co-founder and Managing Director of Gerchen Keller, and I discussed the phenomenon of efficient infringement.

Efficient infringement, which can be a rather cold-hearted business calculation, is when a decision is made to infringe regardless (or in spite of) the presence of patents and whether the underlying activity will constitute patent infringement. Rather than seek out or take an offered patent license, it is determined that it would be better, cheaper and certainly more expedient to simply infringe.

To my surprise, Keller did not really have a problem with efficient infringement. Rather, Keller’s issue is more nuanced. Efficient infringement is an acceptable business decision but those that choose to efficiently infringe should be required to pay for infringement when caught, which is where the system is breaking down presently.

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On the record with Ashley Keller

I recently had the opportunity to chat on the record with Ashley Keller, a co-founder of Gerchen Keller Capital, about monetizing patent rights and the patent market in general. Gerchen Keller provides capital and other financing solutions to companies and law firms involved in complex litigation, including patent litigation. Ashley serves as the firm’s Managing Director. Prior to co-founding Gerchen Keller, Ashley was a litigation partner at Bartlit Beck Herman Palenchar & Scott LLP, where he handled a variety of patent litigation matters, among other things. Ashley also has the distinction of being a member of a relatively small club of Supreme Court law clerks. He served as a law clerk for Judge Richard Posner at the U.S. Court of Appeals for the Seventh Circuit and Justice Anthony M. Kennedy at the Supreme Court of the United States.

What follows are excerpts from my interview with Keller, which took place on November 5, 2015. To read the complete transcript, please see The difficult environment for monetizing patent rights.

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