Hold-out or efficient infringement?

An interesting article from @ManagingIP considering the issue of hold-out with the (perhaps justified) tagline that in-house counsel at various licensors (some of whom are also licensees) believe hold-out as a tactic may be becoming unviable.

Of particular interest was the analysis of the concept of 'efficient infringement', which is another term for hold-out, and the balance against an organisation's fiduciary duty to its shareholders. It is certainly tricky to argue with the logic that, if efficient infringement is the financially most productive approach with limited risk, it is important for any implementer to at least consider it as an option. Of course, the point about fiduciary duty is also relevant to agreeing to accept an indeterminate liability (though it is perhaps bounded by any offers), even if any such licence would, by definition, be fair and reasonable.

As with all things in this space, FRAND is a perpetual balance. Whilst companies may want to drive down the price of IP they want to licence, they do so against the backdrop of wishing not to devalue IP generally as almost always they own a vast amount of IP themselves.

That said, the most interesting thing about the article might be the titbit hidden at the end about the recent InterDigital v Xiaomi anti-suit injunction ruling in the Munich Court: apparently the court went as far as to say that a party that seeks an anti-suit injunction cannot be a willing licensee. If that becomes a hard-edged rule, the anti-suit debate may come to a halt.