5 questions to ask during an intellectual property dispute

>> Jan 8, 2019



Innovation and entrepreneurship are at an all-time high. If you are like most companies, you compete and thrive on the power of your ideas—and those of your people. It is easier than ever to invent, upgrade, modify, and modernize just about any system or process. New products are being designed, developed, and constructed all the time. To maintain your edge over rivals, you must continually recruit people with the best ideas. You must then grow those ideas into properly formulated concepts, and then transform those concepts into genuinely new products or innovations—which must then be branded and protected by law.
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Indeed, the ingenuity and inventiveness of your people will mean nothing if you cannot protect your intellectual property. The latter is an intangible form of property that is the result of creativity. Patents, trademarks, trade secrets, and copyrights are the most common legal mechanism for protecting such property.

The modern economy subsists on ideas and innovations. All companies are in constant search of the next thing that will either meet or create consumer demand, and they are not all scrupulous about the ways in which they get it. Some organizations are not above poaching the intellectual property of a rival. If you have been the victim of such an action, then you must fight back.

However, this can be difficult—especially if you are small firm. A number of large and well-established firms make it a practice to steal the ideas and inventions of younger and less experienced professionals. If your firm is made of such people, you may have been the victim of such a theft.

The big companies tend to steal in sly and non-explicit ways. In order to avoid breaking the law or giving the appearance of doing so, they will copy the idea partially or in a superficial manner. Before you enter into an intellectual property dispute with such an entity, you and your team should ask yourselves the following questions:

1. Is it really necessary to file suit?

Going up against a large company can be expensive, even if you are in the right. Before launching into an IP dispute, you should think through other options. For example, it may be easier and much more effective for you treat the theft of your idea as a business problem. Instead of taking the guilty party to court, you may be able to out-innovate them. You may be able to re-design your product around the IP rights that you already have and relaunch it.

2. What are the best and worst possible outcomes of the dispute?

These are crucial questions to ask because they help you define your end-game. They also help you weigh up the pros and cons—the advantages and disadvantages—of pursuing litigation. If all you can hope for is a modest settlement for the infringement of your IP rights, then you may decide it is not worth the cost to pursue expensive litigation.

3. Can you prove the idea is yours?

It is hard to prove immediately and conclusively that an idea belongs to your company without a patent, copyright, or trademark. Indeed, many IP disputes arise owing to the theft of an idea while it was still in development. The courts will hear such cases. However, you must be able to show some kind of hard evidence of your invention.

Good record-keeping is needed to make this work. For example, if someone on your design team left the company and carried the ideas related to a new project to another firm, you must be able to show a contract that shows the employee agreed not to disclose trade secrets. You must also produce memos, emails, and other trails of correspondence that demonstrate the pain-staking measures you took to ensure that everyone knew how and how not to handle the knowledge entrusted to them.

This kind of documentary evidence must be tracked and kept in order. Before you proceed with litigation, you must have it all to hand.

4. What do the legal experts say?

If someone has stolen your intellectual property, your first call should be to a lawyer. It is important for you to listen to and heed their counsel. Experienced lawyers such as the ones found at Boss Lawyers Brisbane Litigation will have handled many of these cases. They may have dealt with young companies like yours and know the risks of proceeding with litigation. If they think your case is strong enough and winnable, then you should take that into consideration before making a final decision. Although your lawyer will do as you instruct, you should find an alternative if they advise you that the case will not get the result you seek through litigation.

5. Is this a matter of business or principle?

You may be tempted to pursue an IP dispute as a matter of principle. This is understandable. If you have poured your energy and time into developing an idea, you have every right to be angry and to feel indignant about its theft. But you must keep calm and view the matter in the proper perspective.

All IP disputes are business disputes; they are not personal rivalries. You should not be lured into pursuing the matter beyond all commercial sense. It does no one any good to bankrupt the company in pursuit of principle. As mentioned above, the smarter move may be for you to innovate once again; doing so this time in a way that secures your IP rights.

Fighting for your intellectual property rights may not be easy. But with the right legal counsel and business strategy you can prevail in the end. It is okay for you to be upset about the theft of your IP. However, you should not allow anger and frustration to drive your decision-making. You must stay in control and come to some agreement with your team on how to best move forward. Asking the questions above will provide you with a roadmap to a successful end result.

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