Intellectual properties are valuable assets for their owners. They protect inventions, brands, published works, and much more by giving owners the right to sue others who try to take, replicate, or sell the protected work. Therefore, it is often in the best interest of inventors, writers, company owners, and others to invest in intellectual property so their efforts are not wasted. After all, it could take years to write a masterpiece or invent the latest and greatest digital device. In the event willful infringement takes place, IP owners could receive a considerable amount in damages, depending on the type of IP. For instance, for willful infringement on patents, a patent owner could receive up to treble damages.
While IP helps protect an owner’s assets, the effects of infringement are considerable. The following list indicates the challenges IP infringement pose.
1. Proving infringement can be challenging. Many infringement cases are not obvious or easy to detect. It may require reverse-engineering an invention or access to confidential information to prove infringement. In other cases, such as clothing designs, it may be difficult to prove that someone created a design first. Someone else could have worked on the same idea at the same time. Further, it may be impossible to detect infringement if the IP doesn’t protect a tangible product or the product is not widely available to the market with use in the public eye. In some cases, detecting infringement may not be possible with a high degree of certainty, rendering any eventual litigation risky.
2. Infringement can create considerable revenue loss. When another party infringes on IP, this party essentially takes away revenue that the IP owner could be generating. In some cases, IP owners can lose millions of dollars, e.g., pharmaceutical companies (brand name drugs), tech companies (smartphones), etc.
3. Infringement cases are costly. They can cost hundreds of thousands of dollars and even millions. The cost of an infringement suit can be a substantial factor in determining whether enforcing IP is economically wise and ultimately whether that IP has more than some nominal value.
4. IP validity may be questioned. An IP owner faces risks when initiating litigation against a company. For instance, a patent owner may be at risk of possibly losing the rights to the patent if the USPTO or a court finds the patent is either invalid or unenforceable, which can occur for a number of reasons.
5. Infringement cases take time. The process of litigation is never a quick one. It takes infringement detection, lawsuit initiation, Markman hearing, trial prep, trial, and appeals. Cases can take months and even years to come to a conclusion. In the meantime, an IP owner risks losing time in the market and more revenue.
Infringement poses many problems to an IP owner and even to the infringer in the end. However, it may likely be worth the time for an IP owner to assert his rights that could ultimately lead to more revenue, damage awards, a settlement, and stopping the infringement completely. However, IP owners must know what is involved in the event of infringement to evaluate whether filing a lawsuit is the best approach.