Intellectual property (IP) is very often what differentiates your business from a competitor’s and makes you more valuable in the market. Considering this, it’s absolutely vital to ensure your patents and other IP are protected from infringement. The United States Patent and Trademark Office (USPTO) defines patent infringement as, “...the act of making, using, selling, or offering to sell a patented invention, or importing into the United States a product covered by a claim of a patent without the permission of the patent owner.” In simpler terms, IP infringement is theft.
There are some strategies you can follow to protect your IP and hopefully avoid any breach of property rights, but in the case that someone or some entity does infringe on your asset(s), there are also actions you can take to correct it.
Protecting Your IP
Most major countries of commerce have established legislation that will protect a creator or business’s right to create. However, in order to protect an invention with a patent, it must first be registered so there is a record of its existence. Registration is typically accomplished through submission of an application and subsequent approval of the patent by the patent office. While this process is widely recognized in the United States, businesses must keep in mind that if they plan to leverage their invention in internationally-distributed products, they’ll need to go through the respective filing process in each country of distribution.
There are different types of protection available depending on what your organization has produced. Patents, as described above, are reserved for the protection of ideas, like the application of chemical compounds or other materials for a particular purpose, for example. There are also:
- Copyrights - safeguards for the expression of an idea in writing or other communications
- Trademarks - protection for the identity or source of an idea, such as names or logos
- Trade Secrets - protection for confidential information about processes or business practices
It’s possible (and wise) to exercise these protections to full effect in order to preserve the integrity of your intellectual property and be properly compensated in the event of infringement.
As we mentioned above, legal protection of your IP requires you to present it and essentially announce its existence. Alternatively, you could keep all information about your IP confidential. By establishing nondisclosure agreements (NDAs) with all personnel working on or interacting with the IP, you have a defensive layer against infringement. While this isn’t the most secure option for protection outright since your business has no legal claim to ownership of the IP, it’s important to use NDAs during the filing process for your patent. Right up until the patent is approved, the IP is unprotected unless previously secured as a trade secret; as such, there is minimal legal barrier to prevent others who do not own the IP from replicating it. Copyrights and trademarks may be processed more quickly, though, and may present some options for protection, so take advantage of all of your protective rights if you can.
You and your team know your IP best. Staying informed about what new products and announcements are being made in your market can help you identify if another organization has been committing IP infringement, simply because of their product’s resemblance to your own. Attending trade shows and trolling press releases are good places to start. Unfortunately, there is little you can do if that product is patented and yours is not. This reinforces the urgency with which your business should put patent, trademark, copyright and trade secret protections in place. If you already hold a patent, however, take a closer look at the other party’s patent filing and see if theirs infringes on yours. Maintaining your IP portfolio through use of IP management software that preserves filing information can help you quickly recognize incidents of potential infringement.
If you do find another party is committing IP infringement, you will want to pursue legal action. The other business’s use of your IP is drawing away customers from your own product, and you have the right to sue and try to stop those competing sales as well as recover for the losses and potentially additional damages, too.
Available Corrective Actions
Get a Legal Perspective
Upon discovering a possible case of infringement, consult with an intellectual property law firm. They will be able to analyze the situation, determine whether there are grounds for legal action, and offer further advice. Attorneys can also document their opinion of the case for later use as evidence in court, which helps to preserve the situation since the infringing party has not been confronted yet.
Letter of Warning
Depending on how much the infringement incident has cost your business, it may actually be more costly to pursue legal action than to leave it alone. In this case, it’s still important to document the incident and confront the guilty party. Under advice of legal counsel, your business should consider sending a cease and desist letter to the other organization to halt any further production or sale of your IP. They can also alter their use of the IP and avoid infringement, as long as their new activity falls outside of the usage details set forth in the patent filing. On a broader scale, a public relations campaign that announces you will be pursuing legal action against any violators of your IP rights can also deter further infringement activity.
Filing a Lawsuit
If infringement persists, it’s time to take the offender to court. IP infringement cases occasionally take place in state or provincial court, but they’re most often held at the federal level. As stated above, if the court rules in your favor, your business will likely be awarded losses based on the guilty party’s sales of products using your IP and damages based on its market impact. Although court proceedings can be costly, if you discover that there is a well-known market competitor committing infringement, you also may benefit from publicity associated with litigation.
Monitoring the status of your IP will help your business contain costs and recoup any losses that come about due to infringement. For every instance of infringement, however, there’s likely an opportunity for licensing and additional revenue. Even in licensing circumstances, though, IP rights can be abused; diligence and visibility is always going to be an important factor for businesses. Keeping track of your various IP assets only becomes more and more difficult as your business innovates and grows, however. Discover some additional strategies for addressing these challenges in this free eBook for scaling organizations.