Intellectual property is very valuable. This is why their rights must be enforced and protected; otherwise, they will lose their value. In order to protect intellectual property, one can obtain a patent which is a license from the government conferring a right for a set period. So if you have obtained a patent, you have the sole right to exclude anyone from producing, using or selling your invention. Having a patent does not mean that you will never be in a situation where others are using your invention to make a profit. When this occurs you have the right to take legal action. This process is known as a patent litigation.
A perfect example of a patent litigation is the Samsung vs Apple case. There have been a series of ongoing lawsuits between Samsung Electronics Co., Ltd. And Apple Inc. The main focus of these lawsuits has been the design of the table computers and the smartphones. The first lawsuit was filed by Apple against Samsung on January 5th 2007 and was based on four design patents covering the basic shape of the i-Phone. This lawsuit was later followed up in June by another lawsuit based on a color design patent covering approximately two hundred screenshots of various graphical user interfaces of the i-Phone. This lawsuit was followed by many, many more in many different countries – some of which were won by Apple and some of which were won by Samsung.
It was recently published that Samsung and Apple are once again back in court for another round of patent litigation but this time, Samsung is trying to reduce the value of the inventions made by Apple as well as them with the hope of reducing the amount of money they would owe to Apple if they were to lose this lawsuit. Some argue that if Samsung is to be successful and is able to lower the value of the inventions, it would be a mistake because technological breakthroughs and innovation are encouraged by the inventor’s right to protect intellectual property.
So how exactly should you manage a patent litigation? Here are a few things that you absolutely must take into consideration if faced with a patent litigation.
1.One of the first things that you must do if faced with a patent litigation is obtaining professional legal help. The best way to define the relationship between you and your lawyer is through the use of an engagement letter in which all terms and conditions including billing procedures are clearly defined.
2.It is always important to have a litigation budget so that you are not surprised by unexpected costs. It is therefore very important that you ask you lawyer for an estimate of the anticipate costs beforehand.
3.The process of dealing with a patent litigation requires full devotion and availability of all relevant resources including monetary and non-monetary resources such as time. In order to make a strong case, you must have a compilation of relevant and essential information such as the facts of controversy that caused the litigation, history of the invention, and other relating facts.
4.Having a company coordinator to coordinate the activities of the litigation process is of utter importance as well as the need for qualified decision makers to make fundamental decisions such as assessment of the risk, settlement and appeal. In some companies, more specifically smaller companies, such decisions are made by the coordinator.
5.A proper evaluation of the case can be useful in that it provides opportunities to discuss the availability of settlement terms, the risks relating to proceeding with the case and the damages that you may incur if you choose to proceed with the case and end up with an unfavorable outcome. It is very important that you understand these concepts and their impacts so that you can make strategic choices.
6.Once your lawyer has explained all of the aspects of the patent litigation and you fully understand them, you should request your lawyer to have strategy sessions in which you not only assess the progress of the case but that you can come up with effective strategies to proceed with the case. A perfect example of this is what we mentioned earlier about the case of Samsung versus Apple. Samsung has done its evaluation and know that it may end up losing this lawsuit so it came up with a strategy to reduce the worth of the inventions so that if it ends up losing the lawsuit, the damages would be reduced.
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