Intellectual property laws are complex and difficult to understand, even for some experts. In a software company, facing an intellectual property dispute can be stressful and challenging. How exactly are you supposed to handle an intellectual property dispute, and what options do you have?
The Complexity of Intellectual Property Law
Intellectual property law is incredibly complicated. There are many different types of intellectual property, including patents, trademarks, copyrights, trade secrets, and more. To make matters worse, these types of intellectual property are often defined differently and treated differently in different jurisdictions, leading to major issues when an intellectual property dispute occurs across multiple jurisdictions.
The definitions of these intellectual property items can sometimes be confusing, and infractions aren’t always clear. For example, is it really patent infringement if another company borrows one of your ideas and incorporates it into their own, somewhat similar product? The answer depends heavily on the circumstances of the application, the source of knowledge, and other variables. These can be highly difficult to prove or demonstrate in a court of law.
This is why it’s often a good idea to hire a patent expert witness. An expert witness is an expert in a given industry, typically with impressive credentials and many years of experience. They can help conduct research, perform analyses, provide testimony, and even assist in negotiations.
So, how do you start dealing with an intellectual property dispute in the software industry?
Hire a Good Lawyer
First, you need to hire a good lawyer. This is difficult terrain to navigate, and it’s even worse as a layperson, so your first step should be getting access to sound legal advice to make sure you take the most appropriate steps forward. Your lawyer will help you review the details of the case as they currently are known, speculate about potential courses of action, strategize, and eventually take the first steps necessary in litigation.
There are many ways to search for and evaluate intellectual property lawyers. You can start with a simple search or browse through a legal directory, but it’s often even better to get a referral from someone you trust in the industry. Once you have a list of candidates, evaluate their credentials in terms of education, experience, past results, and client satisfaction.
Prepare Your Strategy
Next, you’ll work with your lawyer, expert witnesses, and other authorities to start preparing your strategy. Depending on the severity of the infraction, your resources, and your overall disposition, you may choose to start with something simple or pursue aggressive legal action from the start.
The Typical Process
Typically, an intellectual property dispute in the software world goes something like this:
- Investigate and research. You’re only going to be effective if you have the right information in front of you. That’s why most organizations conduct a thorough internal investigation before they even hire a lawyer. They want to make sure there’s an actual intellectual property issue in play before they start spending money. After hiring a lawyer, the investigation process may continue, especially if there are unknown facts that need to be determined.
- Send a cease and desist letter. A cease and desist letter is a legal document designed to send formal notice to a person or entity that they are committing an illegal action. This letter demands that the recipient stop what they’re doing, with the risk of incurring legal action if they don’t. It’s an important way to demonstrate an attempt at dispute resolution.
- Consider alternative dispute resolution (ADR). In some situations, it’s better to seek alternative dispute resolution (ADR) instead of direct litigation. For example, you might hire a mediator to try and figure out a mutually acceptable solution that will be cheaper and easier for both participants in the long run.
- File a lawsuit. If the matter is more complicated, or if you’re not happy with how your attempt at ADR went, the best course of action may be to file a lawsuit. After filing a claim, the case will go through several phases, including negotiations for a settlement. Most cases settle out of court, so don’t expect your case to go to trial. However, if the case goes to trial, understand that it can be a long, drawn-out process.
- File for arbitration. It may also be prudent to file for arbitration. If you pursue arbitration, you and the other party will agree to abide by the decision of a third party, who will take the time to thoroughly understand your dispute and ultimately settle it.
- File a complaint with the appropriate legal body. Some issues are best resolved by filing a formal complaint with the appropriate legal body. The USPTO and USITC are two examples. Each legal body has its own processes for dealing with these complaints.
The Costs of Litigation
Keep in mind that taking legal action can be time-consuming, stressful, and expensive. Throughout the process, you’ll be paying a lawyer (or a team of lawyers) as well as other experts and professionals to handle your case. In many situations, this is worth it, especially when your IP is jeopardized to the point of compromising the profitability or longevity of your business, but the costs still need to be considered.
For this reason, both parties involved in the IP dispute are incentivized to resolve the issue as quickly and efficiently as possible. In many cases, a simple cease and desist letter is ample to end the infraction and allow both parties to return to their software companies. Failing that, it’s typically better to settle through negotiation and/or mediation than it is to end up in court. Your lawyer will give you more details and more thorough advice on these fronts.
Intellectual property disputes come in many forms and can be handled in many different ways, so treat this as a mere introduction to the topic. If you have reason to suspect an intellectual property infraction, or if you just need more information or support on an intellectual property matter, contact a lawyer as soon as possible.
