Unlocking revenue opportunities in software patent portfolios after Enfish

By Aaron R Fahrenkrog and Anthony F Schlehuber

Following the recent Federal Circuit decision in Enfish, owners of idle software patent portfolios can efficiently identify patents which might produce revenue opportunities

Beginning with the Supreme Court’s 2006 eBay ruling – which restricted the availability of injunctive relief – court rulings and legislation in the United States have increased the challenges facing rights holders trying to obtain relief for patent infringement, including obviousness (KSR, 2007), damages (Cornell and its progeny, beginning in 2009), post-grant review (the America Invents Act, 2011), Section 101 (Alice, 2014) and indefiniteness (Nautilus, 2014). These challenges have had a corresponding chilling effect on rights holders’ willingness to invest in monetising their portfolios. Alice and its progeny have had a particularly significant effect on software patent monetisation due to the increased risk and uncertainty relating to patentability.

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Issue 89