(Image
via
Getty)
Welcome
to
2023.
For
my
first
column
of
2022,
I
took
a
look
back
at
2021’s
IP
developments,
at
least
as
reflected
in
the
columns
that
I
had
written
over
the
course
of
that
year.
For
2023,
I
prefer
to
look
forward,
by
thinking
about
the
probability
of
certain
events
occurring
in
the
IP
world
in
the
year
to
come.
To
help
guide
our
efforts,
we
can
adopt
a
predictive
betting
approach
that
is
a
staple
of
the
burgeoning
sports
gambling
marketplace,
namely,
the
futures
bet.
For
those
who
are
unfamiliar
with
what
futures
bets
are,
here
is
how
they
are
defined
by
the
good
folks
at
DraftKings:
“A
futures
bet
is
a
bet
on
the
outcome
of
a
multistage
event
such
as
a
season
or
a
tournament.”
For
our
purposes,
the
multistage
event
of
interest
will
be
developments
in
the
IP
world
in
2023,
or
at
least
my
idiosyncratic
choices
about
what
I
think
would
be
interesting
to
see
in
the
year
ahead.
As
an
easy
example
of
a
futures
bet
in
a
sports
betting
context,
gamblers
will
often
be
given
the
opportunity
to
wager
before
a
given
season
starts
on
certain
potential
outcomes,
such
as
whether
the
Knicks
will
make
the
playoffs.
Another
popular
alternative
is
a
bet
on
how
many
wins
a
team
will
earn
that
year.
Sticking
with
the
Knicks,
the
over/under
for
their
2022
win
total
was
set
by
certain
sports
books
at
38.5
wins.
If
someone
took
the
over
bet,
they
would
be
betting
that
the
Knicks
would
win
at
least
39
out
of
82
games.
And
if
you
thought
the
Knicks
would
underperform,
you
could
take
the
under,
which
would
mean
that
you
were
betting
that
the
Knicks
would
win
38
games
or
fewer.
That
will
be
it
for
my
gambling
tutorial.
On
to
our
2023
IP
futures
bets.
For
our
opening
futures
bet,
I
think
we
will
continue
to
see
a
migration
of
high-powered
IP
litigation
groups
moving
from
Biglaw
to
boutiques.
We
had
some
examples
of
note
in
2022,
and
I
think
it
will
be
interesting
to
see
if
this
is
a
trend
that
has
legs
in
2023
and
beyond.
For
betting
purposes,
I
will
set
the
over/under
of
new
IP
litigation
boutiques
started
by
former
Biglaw
partners
at
5.5
for
2023.
Yes,
it
is
a
bit
arbitrary
to
write
off
boutiques
started
by
younger
lawyers
or
lawyers
coming
from
outside
of
Biglaw,
but
I
believe
that
two
of
the
biggest
drivers
of
the
recent
Biglaw
to
boutique
phenomenon
are
most
often
encountered
by
existing
Biglaw
IP
partners.
The
first
driver
to
leaving
Biglaw
is
of
course
conflicts,
which
are
endemic
to
practicing
in
Biglaw
and
are
not
always
offset
by
the
cross-selling
or
other
advantages
afforded
experienced
lawyers
for
staying
onboard
their
Biglaw
firms.
Second,
the
increased
role
of
litigation
funding
in
IP
disputes
should
continue
to
allow
a
select
group
of
lawyers
to
set
up
their
own
boutiques
to
handle
funded
cases,
just
as
Biglaw
refugees
were
once
known
to
attract
contingency
work
back
when
contingency
IP
litigation
was
a
less
risky
endeavor.
If
I
had
to
bet
on
this
one,
I
would
take
the
over
—
meaning
I
expect
that
we
will
see
six
or
more
IP
boutiques
started
by
former
Biglaw
partners
in
2023.
Should
be
interesting
to
see
if
that
bet
is
a
success.
We
can
continue
with
the
litigation
funding
theme
for
our
next
futures
bet.
We
all
know
that
much
of
the
pending
big-ticket
patent
litigation
is
backed
by
litigation
funders.
That
includes
cases
where
the
patents
being
asserted
were
home-grown
by
a
once
or
current
operating
company,
as
well
as
patents
acquired
by
NPE’s
of
various
stripes,
including
patents
acquired
from
leading
technology
companies.
To
this
point,
it
has
been
challenging
for
defendants
in
funded
cases
to
determine
how
proactive
they
should
be
in
terms
of
even
seeking
disclosure
around
the
presence
of
funding
in
their
cases,
much
less
with
respect
to
engaging
with
the
funder
itself
as
part
of
a
potential
settlement
approach.
Our
next
futures
bet,
therefore,
will
be
whether
we
will
see
any
publicly
announced
settlements
in
2023
between
a
litigation
funder
and
a
company
that
they
have
funded
IP
litigation
against.
To
be
clear,
I
am
not
talking
about
settlement
of
funded
cases
—
those
deals
will
continue
to
happen
between
plaintiffs
and
defendants
in
due
course.
Instead,
I
am
referring
to
the
more
challenging
scenario,
where
a
sophisticated
litigation
funder
is
able
to
reach
agreement
with
a
sophisticated
IP
defendant
on
how
to
value
litigation
peace
between
their
two
entities.
For
this
one,
we
can
set
the
over/under
at
1.5
—
and
while
I
think
these
types
of
deals
will
one
day
become
more
commonplace,
I
am
skeptical
that
the
raw
nerve
endings
engendered
by
the
current
state
of
play
will
be
soothed
enough
to
see
more
than
one
example,
if
that,
of
funder/IP
defendant
public
harmony
in
2023.
It
is
the
under
bet
for
me
on
this
one.
We
can
end
off
with
a
futures
bet
on
the
number
of
greater-than-$100
million
verdicts
we
see
in
IP
cases
in
2023.
One
of
the
consequences
of
increased
litigation
funding,
buttressed
by
the
option
for
certain
funders
to
insure
the
principal
of
their
litigation
investments,
is
that
IP
plaintiffs
are
better
resourced
than
ever
to
take
their
cases
to
trial.
And
when
IP
cases
go
to
trial,
big
verdicts
are
almost
always
in
the
potential
offing,
especially
for
funded
cases
—
since
they
attract
the
funding
based
on
their
big
damages
potential
in
the
first
place.
Moreover,
throughout
2022
we
started
to
see
a
number
of
big
IP
verdicts
granted
in
cases
involving
NPE’s,
which
should
further
encourage
funded
NPE’s
to
try
their
luck
at
trial
in
cases
where
defendants
are
unwilling
to
pony
up
settlement
amounts
sufficient
to
make
settlement
attractive.
Let’s
set
this
over/under
at
6.5,
which
would
put
us
at
a
big
trial
verdict
every
other
month.
I’ll
take
the
over,
because
I
think
there
are
enough
high-value
IP
cases
in
progress
that
will
get
to
trial
in
2023,
both
because
of
the
presence
of
funding,
as
well
as
the
continued
unwillingness
or
inability
of
IP
defendants
to
proffer
workable
settlement
amounts
in
funded
cases.
Ultimately,
while
futures
betting
can
be
a
fun
exercise,
it
is
also
a
useful
tool
for
thinking
about
what
really
matters
in
a
given
multistage
event
going
forward.
Placing
futures
bets
also
offers
a
handy
measuring
stick
for
testing
how
well
our
current
thinking
will
align
with
actual
future
developments.
Feel
free
to
let
me
know
whether
you
will
be
taking
the
over
or
under
on
the
futures
bets
I
propose,
or
whether
you
think
there
are
other
futures
bets
that
the
ATL
IP
Column
Sportsbook
—
located
in
beautiful
Brooklyn,
New
York
—
should
be
taking
action
on.
And
lastly,
here’s
to
a
healthy,
productive,
and
peaceful
2023
for
this
readership.
Please
feel
free
to
send
comments
or
questions
to
me
at
gkroub@kskiplaw.com
or
via
Twitter:
@gkroub.
Any
topic
suggestions
or
thoughts
are
most
welcome.
Gaston
Kroub
lives
in
Brooklyn
and
is
a
founding
partner
of
Kroub,
Silbersher
&
Kolmykov
PLLC,
an
intellectual
property
litigation
boutique,
and Markman
Advisors
LLC,
a
leading
consultancy
on
patent
issues
for
the
investment
community.
Gaston’s
practice
focuses
on
intellectual
property
litigation
and
related
counseling,
with
a
strong
focus
on
patent
matters.
You
can
reach
him
at gkroub@kskiplaw.com or
follow
him
on
Twitter: @gkroub.