In case anyone is in any doubt as to McDonald's motives and the value of obtaining patent protection they need look no further than the recent case of Broadcom against Qualcomm regarding the breach by Qualcomm of three of Broadcom's patents relating to mobile phone chips. Following a protracted and costly legal battle a US District Court awarded Broadcom $19.6 million in damages for the infringement of these patents.
This amount has now been doubled following a court decision that Qualcomm had wilfully infringed Broadcom's patents. Qualcomm had persisted in infringing the patents throughout the two-year proceedings believing that Broadcom's patents were invalid.
Although this case arose in the United States it provides an example of the quandary that one can be faced with when a rival is in possession of a patent, but a patent that one believes to be invalid. The decision of whether to back off in the face of this patent or to press on using the technology and ultimately challenge the validity of the patent if a claim is made, is not an easy decision to make and one that should be made having received professional advice. In this case Quallcom decided to follow the courage of its convictions and ultimately lost heavily, but each case will turn on the facts at hand and opportunities may be missed if one chooses to avoid tackling the validity of the patent.