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Companies should be securing clawbacks in patent settlements upon invalidation.

Does it work like that? If you were bootlegging during prohibition, and convicted, would your conviction be repealed afterwards? It was technically illegal at the time.

Maybe someone with more knowledge of law on here knows if this is the case with patent law or not.

rhizome appears to be talking about people negotiating settlement agreements where the payments are clawed back when a patent is later found invalid. This would take agreement on both sides before the settlement, and I doubt patent holders would go for it. Worth a try though.

Aha. That makes more sense. Thanks.

In your analogy, the activity was illegal until the law was changed. If a patent is declared invalid, then it shouldn't have been valid when it was used in prosecution, so it's logical for the defendant to ask for some kind of redress. Whether the law actually works like that, I don't know.

Seems to me like it would be hard to get the side who would lose in the clawback to agree to do that when they had the upper hand when the settlement was made.

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