Consider Internal Issues Before Litigating IP

Before bringing an IP lawsuit a business should consider its goals, the consequences and alternatives. There are two key elements to consider when determining whether a case has merit. Does it involve a valid and existing patent, trademark, or copyright? In respect to trade secrets, is the information actually secret and valuable? Not all important information is protectable IP, and if it isn’t there can be no IP violation.

Second, consider the alleged violation. Determining whether a patent or trademark has been infringed can be relatively easy, but a business must assess what it wants to accomplish.

For example, does it want to impose an injunction, or collect damages? Does it want to drive the other party out of business, or have them pay royalties?

Before a trade secret plaintiff argues about what the other side has done, it must prove it has a protectable secret, which poses some difficulties. Also, trade secrets are by definition secret. If trade secret information winds up in a court transcript or filing without a protective order or sealed record, it is not secret anymore.

As with all lawsuits, IP litigation is resource-intensive and a potential distraction from the revenue generating business the IP protects. In all phases, buy-in from the C-suite for the case is mandatory for success. If the internal decision makers are not convinced and fully on board, there is little hope of convincing those outside the organization.