I wrote last week about how Microsoft "switched sides" when it settled up with Immersion Corp., thus helping Immersion with its continuing patent litigation against Sony.
Peter Zura has an interesting post up this week about how patent-holding companies are employing a clever strategy to get around the Supreme Court's eBay v. MercExchange decision that stops them from getting permanent injunctions. Zura's post also pointed me to another recent example of side-switching.
Patent holding company Rembrandt IP sued two competitors, CIBA Vision and Bausch & Lomb. Then Bausch & Lomb settled up, and "court documents suggest that part of the deal gives Bausch & Lomb the right to purchase either Rembrandt Vision Technologies or the patent for the purposes of getting an injunction against Ciba Vision," Forbes reported in February. "Now that Rembrandt has won a patent infringement verdict, Bausch & Lomb, having switched sides in the case, may move against its marketplace competitor, Ciba Vision, and split proceeds generated from any injunction with Rembrandt."
So switching sides isn't just about making more money and hurting a competitor—the divide-and-conquer strategy might allow patent-holding companies to maintain access to permanent injunctions, the "death penalty" of civil litigation. Or, at least they'll try. So far, lower courts have read the eBay v. MercExchange decision quite clearly: patent-holding companies that aren't competitors in the market will have to be satisfied with money damages. They don't get injunctions. We'll keep an eye out, but it's hard to imagine they'll be able to get around that.