\u2014 Abraham Lincoln, Lawyer and 16th President of the United States<\/strong><\/p>\n Litigation is sometimes necessary, but more often than not, it is a drain – on time, energy, money, and peace of mind. It is stressful and distracts business owners from the more productive, creative, and rewarding aspects of their journey.<\/p>\n Understandably, many people fear litigation. So much so, that some forgo protecting their intellectual property (IP) entirely – believing that they wouldn\u2019t have the means to enforce it or defend it if challenged. That is a position I take serious issue with.<\/p>\n My view is that in many cases, an infringement can be an opportunity. And as with much in IP, it all depends upon how you choose to approach it.<\/p>\n There are much publicised, but few in number, operators that exist solely to litigate.\u00a0 These are sometimes called non-practising entities (NPEs); however in the patent space, they are often less flatteringly called \u201cpatent trolls.\u201d<\/p>\n Thankfully for most genuine businesses, litigation is not a strategic goal.<\/p>\n IP disputes can be driven by emotion rather than pure business logic, especially once court proceedings are on foot between competitors because neither may want to be seen to be \u2018weak\u2019 or \u2018giving in\u2019. And that is where things get messy. But if we can identify and understand the motivations behind the actions -whether you’re on the offensive or defensive side \u2013 there is a better chance of resolving a dispute or preferably entering into a commercially fruitful arrangement.<\/p>\n IP is often infringed simply because the other party had no idea they were crossing a line.<\/p>\n This highlights the importance of competitive intelligence<\/strong> – checking existing IP rights in the markets you plan to enter. Similarly, rights holders can minimise accidental infringement by marking<\/em> their rights clearly – through packaging, promotional materials, websites, and other channels that make their patents, trade marks, copyrights or confidentiality notices visible.<\/p>\n Marking serves a dual purpose: it acts as a deterrent and, if litigation ever occurs, it may support a claim for higher damages by proving the infringement wasn\u2019t innocent.<\/p>\n And a word of warning: courts take a dim view of \u201cwilful blindness\u201d when it comes to infringement.<\/p>\n Mistaken Judgement<\/p>\n Sometimes the infringer has<\/em> done their due diligence\u2014but got it wrong. Consider Kodak, who once relied on flawed advice that their products didn\u2019t infringe Polaroid\u2019s patents. The result? A damages award of US$909 million and an estimated total adverse impact exceeding US$3 billion.<\/p>\n When the stakes are high, seek second, third, or even fourth opinions. It is a small investment compared to the cost of being found wrong by the Courts.<\/p>\n Emotions Ruling<\/p>\n Many infringement claims are sparked by a sense of outrage: \u201cHow dare they?\u201d<\/p>\n I was once involved (from the sidelines) in a case where a client was sued for alleged misuse of proprietary information and their own patent being attacked. Despite clear evidence there was no legal or commercial basis for the case, it dragged on.<\/p>\n Eventually, we discovered the true motivation.\u00a0 The other party simply wanted public recognition as the originator of the underlying technology. It was never really about infringement or compensation.<\/p>\n Had this been uncovered earlier, the entire dispute could likely have been resolved through a simple, respectful acknowledgment – without litigation.<\/p>\n When we feel threatened, our brains default to fight, flight, or freeze. It\u2019s biological. But creative and commercial solutions don\u2019t come from panic – they come from perspective.<\/p>\n The key is to step back and examine both your position and the other party\u2019s:<\/p>\n Some options to consider:<\/p>\n Sometimes, you win more by collaborating than by conquering.<\/p>\n Let\u2019s be honest – not every negotiation (or mediation) will succeed, no matter how rational or creative your approach.<\/p>\n If talks stall, consider whether there\u2019s another player?\u00a0 Perhaps a competitor of the infringer – who could become an ally. As the saying goes; \u201cThe enemy of my enemy is my friend\u201d.<\/em><\/p>\n And sometimes, the best strategy is to walk away. Know when to cut your losses and conserve your energy for more promising opportunities.<\/p>\n Whether you\u2019re enforcing or being accused of infringement, a positive outcome is possible. It takes standing back and the willingness to look beyond conflict towards mutual opportunity \u2013 on both sides.<\/p>\n But remember – none of this is possible without IP rights to begin with. You cannot leverage what you don\u2019t own.<\/p>\n","protected":false},"excerpt":{"rendered":" \u201cDiscourage litigation. Persuade your neighbours to compromise whenever you can\u2026 As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.\u201d \u2014 Abraham Lincoln, Lawyer and 16th President of the United States Litigation is sometimes necessary, but more often than not, it is a drain –…<\/p>\n","protected":false},"author":8,"featured_media":7845,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","footnotes":""},"categories":[120],"class_list":["post-7841","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-litigation","insight-resource-articles"],"acf":[],"yoast_head":"\nUnderstanding Motivation<\/h5>\n
Infringement by Ignorance<\/h5>\n
Creating a Win-Win<\/h5>\n
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If Negotiation Fails<\/h5>\n
Final Thoughts<\/h5>\n