In
perhaps
the
greatest
sequence
of
plays
in
USA
hockey
history,
during
overtime
of
the
gold-medal
game
at
the
2026
Olympics,
24-year-old
Jack
Hughes
put
on
a
game-winning
display
of
turning
defense
into
offense.
First,
he
did
just
enough
to
tie
up
Canada’s
Connor
McDavid,
universally
recognized
as
one
of
hockey’s
greatest
players,
from
scoring
on
one
of
his
patented
blazing
rushes
to
the
net.
He
then
helped
get
the
puck
out
of
the
USA’s
zone,
before
poking
it
into
the
path
of
one
his
teammates
to
start
an
odd-man
rush
that
ended
in
Hughes
scoring
the
golden
goal
that
led
fans
back
home
into
wild
chants
of
“USA!
USA!”
A
glorious
sporting
moment
for
a
country
that
needs
heroes
to
rally
around,
as
well
as
a
glorious
example
of
how
fortunes
can
change
with
a
well-executed
transition
from
defense
to
offense.
While
not
as
exciting
as
a
gold
medal-winning
goal,
patent
litigators
can
also
find
themselves
helping
a
client
turn
a
defensive
licensing
posture
into
offensive
litigation
that
aims
to
clear
away
allegations
of
infringement.
One
recently
filed
set
of
declaratory
judgment
complaints
provides
a
solid
example
of
such
an
effort.
It
is
not
every
day
that
you
see
what
looks
like
a
coordinated
attack
against
a
serial
patent
asserter.
But
last
week,
we
saw
a
group
of
prominent
insurance
companies
trying
to
seize
the
offensive
and
proactively
fend
off
licensing
efforts
aimed
at
them
by
Intellectual
Ventures. The
action
started
on
April
7,
with
DJ
complaints
filed
against
various
Intellectual
Ventures
entities
in
Massachusetts
and
Delaware,
by
Hanover
and
The
Hartford,
respectively.
The
next
day,
another
Delaware
DJ
complaint,
this
time
by
Travelers,
was
also
filed.
Three
complaints
over
two
days,
each
filed
by
a
different
law
firm,
but
sharing
similarities
in
terms
of
the
patents
challenged
as
well
as
the
fact
that
each
of
these
erstwhile
competitors
shared
a
common
interest
in
getting
cleared
of
the
patentee’s
demand
for
a
license.
For
Hanover,
that
meant
moving
for
DJ
of
noninfringement
against
three
of
IV’s
patents.
The
Hartford,
meanwhile,
went
after
eight
patents,
including
for
DJ
of
invalidity
based
on
prior
art
and
ineligibility
on
top
of
the
noninfringement
allegations.
And
Travelers
pled
for
a
declaration
of
noninfringement
on
no
less
than
14
patents.
Besides
the
apparent
coordination
between
the
DJ
plaintiffs,
what
makes
each
complaint
interesting
is
the
level
of
detail
each
contains
about
IV’s
licensing
approach
and
financial
demands.
In
The
Hartford’s
DJ
complaint,
for
example,
there
are
no
less
than
eight
pages
of
factual
background,
starting
with
IV’s
first
email
from
December
2023
and
not
ending
until
the
March
2026
notice
letter
from
IV’s
outside
counsel
that
triggered
The
Hartford’s
filing.
In
between,
there
were
nearly
10
emails
or
letters
sent
by
IV
to
The
Hartford,
all
directed
at
trying
to
get
substantive
licensing
discussions
going,
while
trying
not
to
create
DJ
jurisdiction
with
too
overt
a
threat
of
imminent
enforcement.
As
with
the
other
two
insurers,
IV’s
initial
licensing
demand
was
in
the
low
to
mid-seven
figures,
but
even
from
what
would
arguably
be
a
reasonable
starting
point
relative
to
defense
costs
none
of
the
insurers
wanted
to
engage.
Which
is
not
a
surprise,
considering
that
each
was
well
aware
of
IV’s
litigation
history,
but
where
they
also
had
strong
feelings
that
their
use
of
open-source
software
was
not
a
proper
basis
for
having
to
accede
to
a
IV
license.
In
my
experience,
nothing
blocks
a
license
transaction
more
than
when
the
target
feels
that
they
have
a
killer
noninfringement
defense,
or
are
the
wrong
target
for
the
patent
owner
to
chase
after.
That
is
the
dynamic
that
appears
to
have
been
in
play
here,
which
may
also
explain
why
these
insurers
took
aggressive
action.
It
will
be
interesting
to
see
if
the
insurer
group’s
collective
action
leads
to
these
cases
sticking,
or
whether
IV
will
be
able
to
get
them
dismissed
as
not
ripe
on
standing
grounds.
Each
of
the
DJ
plaintiffs
filed
in
jurisdictions
that
they
consider
as
friendly,
which
we
know
can
be
an
important
factor
when
taking
the
decision
whether
to
seek
DJ
relief.
And
each
complaint
takes
at
least
some
pains
to
establish
the
atmosphere
of
an
imminent
threat
of
litigation
by
IV,
another
critical
factor
in
the
eventual
determination
of
whether
DJ
jurisdiction
appropriately
lies.
For
example,
Hanover’s
complaint
discusses
how
IV
has
asserted
the
same
patents
in
litigation
before,
including
against
what
Hanover
considers
peer
companies.
The
complaint
also
calls
out
IV’s
outside
counsel
(a
former
colleague
and
one
of
my
favorite
people
in
this
business)
for
his
firm’s
long
history
of
bringing
cases
on
IV’s
behalf.
Good
fodder
for
the
court
to
consider
on
an
eventual
motion
to
dismiss
for
lack
of
case
or
controversy,
unless
IV
chooses
to
join
issue
and
litigate
the
cases
on
the
merits.
Ultimately,
these
newly
filed
cases
are
worthy
of
our
attention,
both
in
terms
of
demonstrating
that
well-heeled
patent
licensing
targets
can
band
together
for
a
proactive
attack
on
a
prospective
licensor,
as
well
as
with
respect
to
what
they
disclose
about
how
persistent
those
licensors
must
be
to
get
responses
to
their
inquiries.
It
will
of
course
also
be
interesting
to
see
whether
these
cases
stick
as
filed,
or
even
whether
we
see
a
similar
gang-up
approach
against
serial
patent
asserters
take
root
in
other
industry
sectors
that
are
frequent
targets
for
licensing
and
enforcement.
In
the
meantime,
we
have
a
patent
litigation
transition
from
defense
to
offense
to
watch
unfold.
It
may
not
be
as
exciting
as
Hughes’
golden-goal,
but
for
those
in
the
patent
licensing
trenches,
the
outcome
will
likely
be
more
impactful.
Please
feel
free
to
send
comments
or
questions
to
me
at
[email protected]
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 [email protected] or
follow
him
on
Twitter: @gkroub.