Does vigorous defence deter spurious suits?

Writing for Bloomberg.com today, Susan Decker ("Google Mounts Patent Claim Assault by Fighting More Lawsuits") raises the issue of whether overt aggression is the best form of defence, discussing Google Inc.'s current preference for litigation over settlement in order to deter frivolous patent infringement lawsuits. The background to Google's policy shift is that the number of patent challenges against Google rose to 14 last year, from 11 in 2007 and three in 2006. Another 24 US patent infringement cases are currently pending.

An examination of federal court dockets shows that Google didn’t settle any patent challenges in 2008, in contrast with its more conciliatory practice in previous years. Alan Fisch (Kaye Scholer) -- who is not involved in any Google patent infringement litigation -- observes that a court ruling can result in verdicts costing hundreds of millions of dollars, which often makes settlement a smarter solution, avoiding drawn-out cases and legal fees, adding "If you’re going to take a hard-line approach, you’d better back it up with victories".

Raymond Niro (who represented HyperPhrase Technologies in its unsuccessful action against Google, alleging infringement of its patent for a web browser tool-bar) says the new strategy will cause more litigation, not less:

"The typical reaction of litigation-oriented attorneys is there’s no sense talking to Google, you might as well just sue them. They want to project a very aggressive approach to litigation".

Google and Hyperphase are now locked in a post-infringement spat over legal costs, with Google chasing the unsuccessful plaintiff for half a million dollars. Google has said that it wasn't opposed to settling claims in an appropriate case, but it was anxious not to be seen as a soft touch.