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Joint Defense Agreement Considerations in NPE Patent Litigation

BY James W. Soong
September 02, 2013

Accused infringers in patent litigation, especially against non-practicing entities (NPEs), often form joint defense groups to defend against common claims brought in one or more actions. A written agreement of the joint defense group can make plain the respective rights and obligations of each group member and evidence to the court a requisite alignment of common interest underpinning the group. Because a joint defense agreement provides a foundation for the relational dynamic among group members, the opportunity to optimize its provisions for your client and to define a framework for group interaction should be embraced. The following is a selection of relevant considerations to support productive group interaction through appropriate provision in the joint defense agreement.

Confidentiality

While general provision for confidential treatment of shared information hardly needs discussion, details about such treatment are often overlooked in joint defense agreements. For example, the agreement could state that confidential and privileged information of another member must be maintained in confidence, yet may be utilized by other members in support of their common interest. To avoid confusion, the agreement should go further and specify permissible use of the confidential information. For example, the agreement could provide that the confidential information may be incorporated into an opinion of counsel. Alternatively, if confidential information is not to be incorporated into other efforts or otherwise available to a broader audience, the agreement should say so. The agreement also can provide that no member, by words or action, has the power to waive privilege of another member.

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