Lesson 2: Enforcing Your IP Rights in Court
While enforcement proceedings come with risks and costs, it is sometimes important to act when someone is infringing on your IP. In addition, if you become aware of someone infringing on your IP, and you intend to act, you probably should not wait too long before acting to enforce your rights.
If you don’t take action in a timely way, you might risk a court finding that you have acquiesced to the infringement, and it may dismiss your lawsuit or limit the remedies available to you.
However, as has been previously alluded to, enforcing your IP through litigation is not without risk.
The party you are suing can seek to invalidate your IP rights and, if successful, you risk losing your rights.
For example, in the case of patents, it is often possible for a competitor to file for a re-examination of your patents by the patent office. Through the re-examination process, your patent might be invalidated altogether or its claims may be modified.
There are costs associated with bringing enforcement proceedings.
These costs can include not only paying for your own legal fees but also paying for the other side’s legal fees if you are unsuccessful in advancing your claims.
You may also run the risk of the other party successfully asserting its IP rights against you as a counterclaim and you may have to pay damages, or an injunction may even be issued against you.
Litigation can be a distraction away from your business activities and may not be favourably perceived by customers or potential investors.
A careful cost-benefit analysis is required when determining whether to enforce your IP rights against an infringer. You should have a clear understanding of the risks of not enforcing your IP rights as well as the risks associated with enforcing them.