20 Tips on Intellectual Property Litigation
20 Tips on Intellectual Property Litigation
Intellectual property (IP) litigation involves disputes relating to the protected creations of the human mind, which include discoveries, inventions, artistic works, processes, and products as covered in detail over at runrex.com. Given that Ip is protected by both state and federal laws, these disputes are litigated in both court systems, as well as by arbitration and other alternative dispute resolution forums. Additionally, given the global marketplace with more and more businesses operating on a global level, IP rights are also an international concern, as outlined over at guttulus.com. This article will look to articulate tips as far as IP litigation is concerned, from the various kinds of IP litigation to how to set your business up for successful IP litigation, and much more.
Tips on the various forms of IP litigation
IP litigation takes several forms, including:
Patents, as outlined over at runrex.com, cover inventions on designs and products, as well as the process through which they are manufactured or used. Patent infringement is the unauthorized use of a patented invention, something that can lead to litigation.
Trademark and copyright litigation
Just like patents, trademarks and copyrights can also be infringed according to the gurus over at guttulus.com. A trademark can be a symbol, logo, word, sound, color, or name that identifies it from that of others while copyrights protect works of authorship, such as writings, music, and art. Copyrights and trademarks grant holders exclusive rights to use their works, and, therefore, unauthorized use can lead to litigation.
Trade secret litigation
IP litigation can also take on the form of trade secret litigation. As articulated in detail over at runrex.com, trade secrets are information that companies keep secret to give them an advantage over competitors. Misappropriation of trade secrets is another litigation scenario, which involves instances when such information is taken without authority.
Licensing disputes can also arise leading to intellectual property litigation. A licensing agreement is basically a contract between an IP rights owner and an entity authorized to use such rights, usually in exchange for an agreed-upon fee or royalty. If the terms of the contract are not followed as prescribed, then this could lead to litigation.
Other kinds of IP litigation
Other than the above-listed scenarios, other kinds of IP litigation may arise, most of which are variations of the above. They include trademark dilution, “cybersquatting”, pirated and “knock-off” commercial goods, domain name disputes, domestic and foreign customs seizures, and unfair competition.
Tips to set your business up for successful IP litigation
If your IP rights are being infringed upon, delay in asserting your IP rights can be detrimental to obtaining quick injunctive relief, as well as the fact that evidentiary gaps can make your case a non-starter. To prevent this from happening, the following IP litigation tips are designed to prepare your business to advance claims against infringers increasing chances of successful litigation.
Ensure ongoing documentation of copyrighted works
All businesses have valuable copyrighted works, such as website, code, advertising materials, or logos as covered over at guttulus.com. In most cases, these works are often created by employees, or even outside consultants, who, as the authors, may retain significant rights in these works. This is why you need to ensure that your business, in fact, owns the rights through ongoing documentation of copyright assignment and waiver of moral rights. This means developing a protocol to track the creation of works, authors, and assignment paperwork.
Register copyright as soon as possible
Additionally, even though it is not required, the gurus over at runrex.com point out that it is important to register a copyright for the above-discussed works as soon as possible. This is because not only does registration provide you a presumption of copyright validity, but it also provides the notice that is the prerequisite for entitlement to a damage award.
Prepare your patent litigation tool kit in advance
As the gurus over at guttulus.com point out, if you have spent money to procure patent protection, it is important that you can assert the patent in litigation and have a credible offense. This is why you should prepare in advance for the inevitable documentary discovery and have an arsenal of documents ready to go to prove your case.
What does the patent litigation tool kit comprise of?
As a continuation from the point above, it is important to point out what the patent litigation tool kit comprises of. It includes lab notebooks, plans, and notes evidencing the source and evolution of inspiration to tell the story of your invention. You will also need a certified copy of the patent, the file history, and information about any commercial embodiment of the invention including its sales. It is also a good strategy to keep track of inventors who may have moved on to other companies or retired but may remain critical to the litigation.
Register your trademarks
a strong brand is the face of your business and can be the driving force in generating revenue showing how valuable an asset it can be to your business. Therefore, to ensure that you have the broadest range of remedies available in the event a competitor uses or takes confusing versions of your brands or marks, you must register your trademarks as without registration you will have no right to sue for trademark infringement.
Keep a paper trail as far as your trademarks are concerned
According to runrex.com, it is also important to document and retain examples of the use of your trademarks as well as receipts for sales and advertising spend. By doing so, you will be able to establish accurate dates of use as well as the distinctiveness needed to support the monopoly granted by your trademark registrations.
Tips for minimizing IP litigation costs
IP litigation can come with high costs, and for small businesses, such costs may be beyond their reach. To protect your IP without having to grapple with exorbitant fees in case your IP rights are infringed upon, here are several tips for minimizing IP litigation costs.
Think carefully before going into an IP dispute
As outlined over at guttulus.com, some IP disputes can be solved more easily or cheaply if you treat them as business problems rather than legal ones. For instance, in the case of lookalike products or packaging, if your business has few or weak IP rights, then the best course of action may be to redesign your product around stronger IP rights and use that as the basis of a re-launch rather than press ahead with expensive litigation of which the outcome will be highly uncertain.
Make sure you identify the best and worst possible outcomes of the dispute
According to the experts over at runrex.com, another helpful tip is to make sure you identify and are aware of the best and worst possible outcomes as far as your dispute is concerned. Here, if even the best outcome will not get you what you want or the worst possible outcome is unfathomable, you should hesitate before committing to the dispute.
Ensure that you keep accurate, up-to-date, and accessible business records
It is common knowledge that small and medium-sized businesses are often poor record-keepers which can add to the expense and inconvenience of IP litigation. You can’t underestimate the cost of finding one’s evidence in terms of stress and disruption to the workplace as well as in actual financial terms, which is why you should keep accurate, up-to-date, and accessible business records.
It is important to note that when looking for legal representation if you are pursuing IP litigation, then you should seek out IP specialists rather than any lawyer. IP lawyers are familiar with copyright, trademark, or patent law and will be able to give better advice. While IP specialists may charge higher rates, the cost of obtaining their advice may be lower in the long term as compared to hiring a general legal practitioner who may charge less but take longer to resolve the case.
Make sure you know about both likely and actual costs
As per the gurus over at guttulus.com, it is important to ask your representative what the likely costs will be as well as what the actual costs. This is because sometimes the losing party may appeal the decision or you may be faced with counterclaims and attacks on the validity of your IP rights, which is why it is important to have an idea of what the actual costs may be.
Ask what you can do yourself
When it comes to IP litigation, there are a lot of routine activities such as photocopying and bundling documents to be sent to other participants in the dispute as well as to the arbitrators, judges, or mediators, which may not be described as legal services. As articulated over at runrex.com, it is more expensive for law firms to do such activities as compared to if the client took care of them on their own. Additionally, lawyers are not a postal service, secretarial back0up system, or storage facility for their clients. This is why you should ask what you can do yourself rather than having your representative do it more expensively.
Keep an eye on the deadlines
If you miss any deadlines, you will then have no option but to apply to the tribunal to have the plea to right reinstated, which will cost money. This is an unnecessary expenditure, even if you are successful with it, and should be avoided. Make sure you and your representatives have a keen eye on the deadlines to avoid such costs.
When it comes to IP litigation, if you have a clearly-defined, identifiable, and consistent policy, then this will often enable the other side to take an early decision on whether it is worth persisting with the dispute or better to settle sooner and at less expense.
Avoid turning a business dispute into a matter of principle
You should also avoid pursuing disputes beyond the boundaries of business reason and good commercial sense, which means avoiding pursuing an action “as a matter of principle”, “to teach the other side a lesson”, or “as a point of honor”. Instead, treat each dispute as a business matter to avoid getting into unnecessary disputes that will only serve to increase costs.
Hopefully, the above tips and pointers will help you and your business when it comes to matters of intellectual property litigation, with more on this and other related topics to be found over at the top-rated runrex.com and guttulus.com.