Denke is a former litigator, and his closing paragraph is pretty much the Way Things Should Be:
After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs’ practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am “uncompromising” in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.
I say this because my observation has been that Monster Cable typically operates in a hit-and run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction.
I subscribe to exactly the same philosophy, and we’ve responded in the same fashion to the C&D’s we’ve received. If we’re wrong, we’ll fix it immediately. But if we feel we’re in the right, and that there are real business or customer issues at risk, we won’t propitiate and we’ll fight back hard.
What’s sad is when lawyers call the shots in a company. Nothing against lawyers (really, I even have one in my family), but they often don’t have the broad business sense to look at something from the bigger picture. They unnecessarily scare people in a company (especially those who aren’t experienced). And that results in sometimes mindblowingly terrible business decisions. And sometimes, taking a friendly and reasonable approach to a potential legal issue can win you serious props.