Strategically, treating patents solely as a defensive mechanism is a misunderstanding. Considering only counterclaim potential is equivalent to wasting an asset. If another company is employing your patented technology, enforcement is in order, even if it translates to cross-licensing, or outsourcing your portfolio to a licensing company better able to enforce.

If you think your company is infringing others' patents, seek to license. Addressing licensing with a competitor as a risk-reduction business opportunity results in least-cost cross-licensing.

Litigation after litigation proves that proactive licensing is the least expensive path. Ask Research in Motion what they think about that after they license NTP's patents.

Think of proactive licensing as insurance. It's much cheaper to take a license early in a product's life than to try to get one with a later-stage successful product. If you don't believe it, wait a few years and ask Apple Computer, the duke of missed opportunities, about their iPod.

As almost an irony to the patent grant of denial of use, a patent's real value is in its employment. If a patent is embedded into its owner's products, those products should have a competitive edge, either in cost or in feature set. If not, the patented feature is worthless. If the patent delivers competitive value to a company, that competitive edge could, and should, be marketed in the form of patent licenses if its full market value cannot be realized by its owner. Pharmaceutical and drug companies are exemplary in creating patent barricades as a means to monopolize and reap patent full value. But this method almost never applies in processor-based technologies, such as with computers, networks, software, and mobile phones, where most leading products use many patents owned by others, even though a manufacturer may not realize the full scope until after being hit with an enforcement action. The smart approach then is to be aware of the relevant patent landscape, acting to maximize returns on one's own patents while minimizing costs of infringement through proactivity. Taking a whitespace approach to patenting is like riding the wave of innovation to future profits, as well as a way of being aware of any rocks of infringement.

A patent portfolio should be managed as an active investment. Acacia Research is so successful because it treats its portfolios as active investments, and only works patents that withstand vigorous vetting. If a company is not willing or able, for whatever reason, to manage its patent portfolio as an active investment, it ought to consider outsourcing its portfolio to a licensing company that can. Patent Hawk provides grooming services to technology companies looking to assess and enforce, or outsource, their portfolio.

IBM is in something of a unique position, being able to provide wholesale blocks from its massive 44,000 patent portfolio, and doing so by offering a collaboration investment program. Other companies with small portfolios cannot of course emulate such a venture, but should emulate IBM's business-like approach to actively reaping value from patents.