Recently there have been a number of high profile international cases regarding patent infringement and intellectual property. Most notable amongst these have been the very public battles between computing giants Apple and Samsung.
However, it would be wrong to assume that mega-corporations such as these would limit the scope of their litigation to the ‘big fish’. This firm has first-hand experience of some of the biggest companies in the world attempting to crush or otherwise take advantage of small businesses by abusing, or making allegations with respect to, their intellectual property.
If your company faces an allegation that it has infringed another company’s IP rights, there are a number of issues of which you should be aware:-
Are the allegations accurate?
In many instances, parties will be entirely unaware of their alleged patent infringement. As such, a letter of demand from a patent holder often comes as a huge surprise to small businesses. However your lack of intent will not assist you as patent infringement is assessed objectively.
If an allegation is made, the devil will be in the detail. It is important that you seek specialist advice immediately. We will conduct a detailed analysis of the patent which is alleged to have been infringed, and the item which is alleged to have infringed it. It is often the case that the allegation is exaggerated and unsupportable, and only a close legal and expert analysis of the allegations will empower you with the knowledge of whether a defence is worthwhile or futile.
Given the high costs of IP litigation, whether you are enforcing or defending, this knowledge is absolutely crucial.
If the allegations are accurate, can they be easily addressed, even in part?
In many cases, it is a preferable alternative to litigation for a company to change its product slightly to avoid the potential for IP litigation, which can be extremely expensive and time consuming.
Allegations of patent infringement often come hand-in-hand with allegations of misleading and deceptive conduct (a more nebulous concept). In many instances where we have acted in such matters, our clients have been able to avoid litigation where such allegations have been made by implementing small but important changes into their products which, while perhaps not addressing the allegations in their entirety, address them sufficiently to make litigation a risky and unappealing option.
Often, this is enough to make the allegations go away.
If litigation is commenced, what sort of claim will you face?
If you are unable to avoid, address or frustrate the allegations, your only option will be to fight them. The orders which will be sought against you will be for injunctions and damages, which may have a crippling effect on your business. If you do resolve to fight them, you should only do so in circumstances where you can be confident of victory (and recovering your legal expenses, which may be substantial). We can provide you with professional advice on your prospects of success.
For more information on these issues, please do not hesitate to contact us on (02) 9411 4466.