Patent infringement risk can cost companies hundreds of millions of dollars and carries with it the threat of triple damages in cases of willfulness. And while in recent history the possibility of large verdicts seemed unlikely, over the past year the industry has seen a sudden increase in billion-dollar mega-verdicts, some with willfulness enhancements.

With an overabundance of data, new and numerous communication channels, and an increasingly transient and remote workforce, how do counsel for modern innovators manage freedom-to-operate investigations? How are communications kept privileged while facilitating collaboration between legal and R&D teams? What is the appropriate balance between unfettered product innovation and managing patent risk?

Recently we teamed up with IP Watchdog, along with patent litigator Christopher Patrick, Special Counsel at Baker Botts, and Jennifer Russell, Associate General Counsel for Intellectual Property for Surgalign Spine Technologies, Inc. to discuss how to maximize value and insight in patent clearance in the wake of a resurgence in large scale patent damage awards. Questions discussed included:

  • Are FTO investigations necessary for risk mitigation today? If so, when?
  • How should patent counsel manage FTO investigations due to the changing patent damages climate?
  • What rules and protocols should be put in place to ensure that FTO investigations and communications remain privileged?
  • How can the relationship between in-house counsel, outside counsel, and the R&D department foster an agile and collaborative process?

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