It may not literally keep in-house attorneys up at night, but the chance that a relevant patent owned by another may unexpectedly show up on one’s desk in the morning is certainly not a pleasant thought. In addition to being a distraction from the main business, none of the options in this scenario are very satisfying. One option is to do nothing — while possibly obtaining an opinion letter to shield from enhanced damages — and hope that the patent owner will not enforce the patent. But failing to address a potentially troublesome patent may put a cloud of risk over the business, possibly affecting the business’s valuation and flagging a diligence issue for potential investors or acquirers in the future.

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