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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