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Gaston Kroub of Kroub, Silbersher & Kolmykov PLLC predicts that, to the extent litigation funders get involved in funding competitor IP cases, funding preliminary injunction motions is something that will be met with serious consideration, as it allows funders to put more capital to work in the case earlier on and also allows for an early test of the merits of the claim, whereby the funder might decide to parachute out of the investment early if things don’t go well.
Marla Decker of Lake Whillans reports that in a recent case, the Delaware Supreme Court has allowed the full amount of the contingent attorneys’ fees (which were one-third of the damages awarded and amounted to nearly $20 million) to be shifted to the non-prevailing party based on a contractual fee-shifting provision and argues that the logic in this and similar cases could extend to the recovery of litigation finance costs under the “costs” prong of a fee-shifting provision.
Those interested in monitoring developments in patent law should continue to focus on decisions coming out of Judge Alan Albright’s court. A recent decision of his provides a rare judicial discussion of certain damages issues which are extremely useful for litigation funders and their patentee investment beneficiaries, reports Gaston Kroub of Kroub, Silbersher & Kolmykov PLLC.
Lake Whillans and Above The Law have released the results of their fifth annual litigation finance survey which shows that, among other things, firms with 500+ attorneys have the smallest proportion of firsthand experience with litigation finance, and across the board respondents practicing in the telecommunications and technology industries reported the most firsthand experience.
Gaston Kroub of Kroub, Silbersher & Kolmykov PLLC warns big defendants that they must be strategic about their approach to funded plaintiffs, as a recent decision from a US patent case serves as proof that there is little appetite in many judicial quarters for making funding arrangements a centerpiece of patent cases.

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