How to prevent, detect and fight IP infringement
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It’s every company’s worst nightmare: you have spent copious amounts of time and money on research & development, spent even more to patent the results, and someone else floods the market with cheap knock-offs.
Unfortunately, a patent application isn’t a guarantee this will not happen to you. However, there are certain things you can do to prevent IP infringement, and when it does happen, there are different ways in which you can fight it.
Preventing IP infringement
To be clear: we are talking about others infringing on your IP, not about how you should prevent infringing on others’ intellectual property. Protecting your IP starts as early as possible:
· Limit the number of people that are aware of / working on your R&D / IP projects
· When you need to involve third parties such as contractors or part manufacturers, have them sign non-disclosure agreements
· Establish prior art: dated publications that show your ownership of your IP. This is a pre-emptive move to prevent other parties from patenting your ideas. In some cases, it is not even followed by a patent application
· Patent your ideas in the markets that are most important to your business
Patent Infringement cases filed in US Courts (17Q1). [LexMachina]
Detecting IP infringement
You can only fight infringement of your IP if you first detect it. In the ‘global village’ that we live in this is not always easy to do, but fortunately the internet can be a powerful ally when searching for infringement. Some suggestions:
· Use price comparison websites to find (cheaper) alternatives to your product, which you can then research
· Set up online alerts for words describing unique characteristics of your products, and check the source whenever these are used to describe other products
· Create a feedback mechanism for the sales team and research their claims when they are losing deals to cheaper alternatives or new competitors
· Search proactively in patent databases to identify applications that may infringe on your IP
· Educate consumers about the dangers of using counterfeit or pirated versions instead of your original product; make them quality-conscious
· If need be, reverse-engineer products or software to establish whether your IP rights were indeed breached.
Total # of Patent infringement cases filed at US District Courts in 2016. [LexMachina]
Fighting IP infringement
When your IP rights are violated, the most important thing is to make it stop as soon as possible. Unfortunately, fighting IP infringement is hindered by the fact that countries differ in their legislation, judicial processes and effectiveness of the patent administration offices.
In some cases, having your lawyer send a ‘cease and desist’ letter is enough to make that happen. If not, suing the infringer in order to get an injunction and/or damages awarded is your next step.
To be successful in the courts, it is imperative that you can prove your patent is valid, since infringers will often make the case that it is not. For instance, if your patent is found to not meet the requirements of novelty and nonobviousness, it will be rendered invalid and you will lose your case.
In the field of IP as in healthcare, therefore, an ounce of prevention is worth a pound of cure.
How LexisNexis can help you protect your IP
If your IP is important to the continued success of your business, LexisNexis has a portfolio of analytical tools that will protect you from IP infringement.
Access the world’s largest collection of patent data from across the globe to easily monitor and invalidate competitive threats with timely information delivered by TotalPatent One.
Lex Machina software mines litigation data, culled from millions of pages of litigation information, to reveal previously unavailable insights about judges, lawyers, parties and the subjects of the cases themselves.
LexisNexis PatentStrategies correlates worldwide patents with financial, litigation, market and key business data to provide a complete picture of the intellectual property landscape.