2(b)

[idmw]

Two quick thoughts.

1. Just some housekeeping - Shouldn't there be a "The" before Company at the start of section 2, or perhaps square bracket [Company] to indicate an insertion rather than internal reference?
2. Section 2(b) is so broad that it might undermine the remainder of the agreement - how many companies have not pursued their rights against any other company at all over the last 10 years? Are you implying that anyone who volunteers to defend their IPR is tainted by that fact and thus a "patent combatant"? Seems a little OTT no?

[benltwitter]

1. Yep, good point. Will edit.
2. It's a balance. The idea is to make it a serious thing for someone to go "offensive" while allowing for time to pass and for the situation to revise itself. Reasonable minds could differ on how much time should pass for this provision...

[idmw]

Perhaps I misunderstand 2(b) -

against an Entity that has filed, maintained, or voluntarily participated in a patent infringement lawsuit against another in the past ten years, so long as the Entity has not instituted the patent infringement lawsuit defensively in response to a patent litigation threat against the Entity; or

voluntary participation - this could be defensive participation (nothing legal compels you to defend your self - you would simply forfeit, right?).. so arguably all participation, offensive and defensive would be covered here.

Is the intention to capture only those who are plaintiffs rather than defendants?

Im guessing the latter clause is supposed to exempt companies from acting against patent trolls, right?

[idmw]

The reason I ask, is that perhaps you could word the clause differently -

something along the lines of "any entity who, when acting as a plaintiff (or by way of counter claim as a defendant), has utilized or threatened to utilize a patent as the basis of their claim of infringing behaviour on the part of a defendant...

or something like that?