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. 1

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