To settle or not to settle: What would you do?

Merpel asks "What if"...

Like any curious Kat, Merpel spends her day contemplating "What if…". The game is often best played with multiple players whose views on risk and probability can impact the eventual path taken. So over dinner recently, when a hypothetical story was posited into her lap with a meaty "What if…" question, she wanted to extend the game to the Kat's readership to see if their wise brains could conjure up any inventive answers. The question is as follows:

During patent infringement proceedings, the patentee (who is an SME and not in a dominant position) comes across a killer piece of prior art that would destroy the patent. Assume that the defendant, a huge multi-national, will not find it (e.g. because it is a prior use by the patentee that no-one remembers), that there is no obligation to give disclosure and that the defendant will not obtain a disclosure order. The patent has only a few years left on its life but winning the case is vital to the company’s survival. If the defendant loses, it will have no material effect on its business. Assume that no settlement is possible apart from walking away from the action with no order as to costs.

If you were the patentee company, what would you do?


Merpel is eager to hear your feedback by voting above or writing to her or the AmeriKat (ideally the latter, as Merpel doesn't get out of her heated Kat bed for just any answer). The most inventive answer received by 4PM today, will receive a Katpat (and possibly something extra) from Merpel and the AmeriKat.