Who Is Really Suing You: Patent Assertion Entities, Litigation Funding, and the Economics Behind the Complaint
By Casey Scott McKay ·
The economics behind a patent complaint determine how it will be litigated far more reliably than the merits do, and the first question in any assertion case is who is actually behind it. This article works the structures - shell plaintiffs, portfolio acquisition vehicles, contingency arrangements, and third-party funders - and what each implies about settlement behaviour. It sets out the standing analysis that determines whether the named plaintiff can sue at all, the real-party-in-interest question that reaches funders and prior defendants, and the disclosure orders that have made funding visible in several districts. It then works the defence levers that actually change outcomes: venue after TC Heartland, early dispositive motions, review proceedings, and fee exposure under Octane Fitness.
IP and Technology > Patent Litigation | Article | Published 6 January 2026 - Updated 27 March 2026 | Casey Scott McKay - marksy.us
Summary. The economics behind a patent complaint determine how it will be litigated far more reliably than the merits do, and the first question in any assertion case is who is actually behind it. This article works the structures — shell plaintiffs, portfolio acquisition vehicles, contingency arrangements, and third-party funders — and what each implies about settlement behaviour. It sets out the standing analysis that determines whether the named plaintiff can sue at all, the real-party-in-interest question that reaches funders and prior defendants, and the disclosure orders that have made funding visible in several districts. It then works the defence levers that actually change outcomes: venue after TC Heartland, early dispositive motions, review proceedings, and fee exposure under Octane Fitness.
Keywords: patent assertion entities · non-practising entities · shell plaintiffs · portfolio acquisition · contingency structures · litigation funding · funder control · champerty and maintenance · funding disclosure orders · real party in interest · Applications in Internet Time · standing and substantial rights · Lone Star v Nanya · venue after TC Heartland · fee shifting under Octane Fitness · inter partes review time bar · settlement economics · defence cost curves · joint defence groups
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