16 Chi.-Kent J. Intell. Prop. 1 (2016)

handle is hein.journals/jointpro16 and id is 1 raw text is: 










OPEN SOURCE TACTICS: BARGAINING POWER FOR STRATEGIC
                               LITIGATION

                             JAMES  SKELLEY*

INTRODUCTION                            .............................................. 2
I. EXAMPLE  PATTERN:   XIMPLEWARE V. VERSATA              ................4
       A. XimpleWare   Specific Litigation Topology..         ............4
       B. Generalized Litigation Topology ...................7
II. COMPLIANCE-BASED DEFENSE TACTICS .......................8
       A. Qualitative Assessment  of the Threat Credibility
           Conditions.       ........................       ........ 10
       B. Influencing Al - Is Threatening Worthwhile?   ............. 13
            1. The Remedies  Sought by Hl' Against  1A.....................14
               a. Injunctive Relief........................ 14
               b. Monetary  Relief ........................ 17
           2. New  Counterclaims  Bi......................18
           3. Pressures from Downstream   Customers   D1.............19
       C. Influencing Al - How   Should A Threaten?.................20
            1. Acquiring the Copyright     ...........................21
               a. Purchase Price Capacity ..................21
               b. Demonstrating  Commitment -   Failed Purchase......25
           2. A's Ability to Notify H..B.......................................26
               a. Fact Pattern (a) - A Recognizes Breach
                   Independently  of Litigation or Any Restrictive
                   Obligation.     ..................       ......... 27
               b. Fact Pattern (b) - A Recognizes Breach During
                   Litigation Discovery.................... 28



* Licensed Attorney, State of California and the District of Columbia. Licensed before the United States
Patent Office. The views and analysis in this document are presented merely for purposes of discussion
and are not intended as legal advice. Neither are the views and analysis presented herein to be considered
the conclusive opinion of the author. Interpretations and conclusions depend greatly upon the particular
facts of a given situation and statements by the Author simplified to facilitate understanding should not
be construed as the Author's conclusive opinion.


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