Enforcing Your Core IP Rights to Further Your Business Goals
Not all intellectual property is created equal. Typically, only some of a company’s IP actually relates to core products or promising future technologies. This fraction of a company’s IP portfolio is where its priorities should lie from an enforcement standpoint. The rights afforded by these core patents, trademarks and trade secrets protect the backbone of the company.
So what if you suspect that a competitor is treading on these fundamental IP rights? First, look before you leap. Due diligence must be conducted to determine whether the competitor is actually infringing. Next, your company must weigh the benefits and cost of an enforcement action to determine if it makes business sense. The benefits could include protecting your market share, blocking the competition from a market segment, or sending a message that your company is bullish when it comes to enforcing IP. The costs to consider are legal counsel fees, the time you could potentially spend if a case goes to court, profits lost if you don’t enforce your IP rights and profits lost if you lose. IP counsel should be engaged at this point so the discussion includes a dispassionate, objective viewpoint from someone who can also appreciate your business goals. This is a vital step, because once you leap and an infringement dispute begins, it can often take on a life of its own.
If you decide to proceed with enforcement, the next step is determining what action to take. This involves further business analysis. Questions to consider include:
- Is it important to maintain exclusivity in the market? If so, some level of action is often necessary. Sometimes, a letter demanding that a competitor stop infringing solves the problem. Other times, informal discussions about the violation can curb the issue. Sometimes court action is required to compel the infringer to stop.
- Is there a significant risk that if the first infringer is not stopped that more infringers will emerge? If so, seeking injunctive relief or a design change by the competitor may be a top priority in ultimately resolving the dispute.
- Is there a likelihood of recovering substantial damages from the infringer? How important is the infringing product to your competitor? These questions may dictate whether the infringer will put up a fight or look to quickly resolve the dispute.
- Are you willing to license or cross-license technology?
Use your analysis to search for weak spots in your thinking and challenge counsel to assist you in the process. The middle of a lawsuit is the wrong time to discuss for the first time if the lawsuit makes any business sense.
Enforcement of IP rights can generate additional revenue and protect the company’s profit centers. But only thoughtful and goal-oriented management of your company’s IP can be such a catalyst for success in this demanding economic climate.