Introduction
Intellectual Property (IP) is intellectual work, i.e., inventions, designs, and art work, and is legally protected. The protection entitles the owners of work and creation, inventors, and corporations to the right to guard their works and creations against misuse. The journey to obtaining and enforcing IP rights is not always easy, however. Halfway along the journey is IP litigation, a judicial process where intellectual property right disputes are resolved by the courts.
IP litigation is the most apparent characteristic of intellectual property right protection wherein businesses and individuals can protect their inventions and goods. As the global economy is also advancing at a fast pace towards intangibles, whatever is being undertaken in developing, employing, or even procuring intellectual property will necessarily be taken to eyeball-to-eyeball confrontation with IP litigation.
We will be touching on here within this article what IP litigation is, what it is, the process of legal proceedings, and barely scratch the surface of some of the issues and challenges. We will be summarizing and answering some of the most popularly asked questions on IP litigation.
What is litigation?
IP litigation is judicial resolution of a dispute of ownership, exploitation, or theft of intellectual property. IP litigation arises when an individual feels that his intellectual property rights have been used by another person, i.e., used in some form. IP litigation would most likely exist in intellectual property specialty courts, i.e., patent courts, copyright courts, or trademark courts, depending upon the subject of the IP.
• Types of Intellectual Property Disputes
IP disputes can involve a range of intellectual property issues such as:
1. Patent Litigation
– Patent litigation is when one litigates for patent ownership or patent infringement. A patent grants a monopoly right to make, use, sell, or license an invention for a finite period of time (typically 20 years from filing). Patent litigation can happen when one makes or sells something infringing on the patent without a license.
2. Trademark Litigation
– The case for disputes under trademark consists of the abuse of a registered trademark. Trademark refers to a word, symbol, or mark used in creating distinction among two business company products or services and another business company. Infringement of trademark exists when a party uses a mark, which is confusingly alike to another allied registered mark of another party to create confusion within a consumer’s mind.
3. Copyright Litigation
– Abuses or piracy of intellectual work, i.e., books, music, movies, software, etc., and other mental work is addressed by copyright litigation. Copyright helps the original creator to have exclusive ownership of the work, i.e., to exhibit, distribute, and copy work. Whenever anyone makes a duplicate of or distributes copyrighted materials illegally, copyright litigation is in the limelight.
4. Trade Secret Litigation
– Trade secret action is founded on wrongful use, disclosure, or misappropriation of the trade secrets like customer lists, recipes, or methods. It is not registered but is protected under law, and the action can be brought if the third party, ex-employee, or competitor is utilizing the confidential information in illegal manner.
• Key Players Involved in IP Cases
There are barely a few dozens of serious IP players, and every one of them has his role to play in the game:
1.Plaintiff
– Plaintiff is the person who brings the legal case before the court in the form of a lawsuit. He is likely to be the most frequent possessor of the intellectual property right who believes that his IP rights are violated.
2.Defendant
– Intellectual property rights are being infringed by the defendant. At times, the defendant states that there is no intellectual property or intellectual property is not infringed.
3.IP Lawyers
– IP lawyers are practicing lawyers in intellectual property. They are the client’s representatives in IP cases, counseling, suing, and defending against infringement.
4.Judges
– IP issues are adjudicated by judges in court and the fate of the case is sealed. Special IP courts exist with expert intellectual property disputes judges in some other jurisdictions.
5.Expert Witnesses
– Expert witnesses are also typically employed in IP cases, particularly in patent and trademark cases. They play the role of providing technical or industry expertise that would be utilized by the court in attempting to understand the complexity of the case even further.
• The Process for IP Litigation
IP cases go in chronological order from initial filing of action through ultimate outcome. Procedure will differ in different IP and jurisdictions; however, historically procedure has gone as below:
1. Pre-Litigation Analysis and Strategy
– The plaintiff would consider step by step before suit. That would be followed by reflective consideration of the sufficiency of their intellectual property right, watching out for possible infringement, and deciding whether one could go to court in spite of it. The plaintiff would attempt to settle the dispute peacefully by way of negotiation or some other kind of alternative dispute resolution (ADR) means like mediation.
2. Filing the Lawsuit
– The negotiations break down, and the plaintiff goes ahead to sue in a jurisdiction court. It entails filing of complaint, identification of nature of controversy, the IP involved, and the infringement claimed.
3. Discovery
– Discovery is the process of the trial procedure where the two parties share information about the case. It involves documents, expert witnesses, affidavit of witnesses, and other evidence. Discovery enables the two parties to prepare for trial and may in some cases involve settlement negotiations to be conducted.
4. Motions
– Both the sides are equally at liberty to go to court whenever they possess a case. The motions can either be adjudication or special action, i.e., motion to dismiss action, motion for summary judgment, or motion to compel disclosure for the other side.
5. Trial
– Where the dispute is one that cannot be settled or otherwise is inappropriate, the attempt can be made. Argument, evidence, and opinion of a specialist are placed before a court. Validity of the IP right and whether it is infringed or not is decided by the judge or jury.
6. Appeals
– Both of them can refuse to implement the trial judgment, and in so refusing, they can appeal before a court of appeal. The court of appeal shall hear the case on grounds of error of law and may reverse, set aside, or confirm the trial court’s judgment.
• Enforcement of Judgments
– Where a judgment is rendered by the court in favor of the plaintiff, the defendant is restrained from the infringement of intellectual property, awarded damages, or other relief against the infringement. In certain other situations, in certain other courts, the plaintiff would be awarded recovery of judgment there where there’s an asset of the defendant.
Though IP litigation is an available enforcement tool now, someday or other, it will have to stop. A few of the longer-term potential negatives to IP litigation are:
1.Costly to the Point of Absurdity
– IP litigation involves a cost in that it encompasses attorney, expert witness, and courthouse expenses, which balloon in a stupendously colossal way.
– It generally becomes too costly for small businesses or individual inventors either to sue or even to defend against a suit.
2.Sophistication of IP Law
– Intellectual property law is very technical and surprisingly non-homogeneous across jurisdictions. A lot is needed to practice in a highly sophisticated juridical system, and technical competence and specialist expertise are needed.
3.Time Taken
– IP litigation is always hard work and always takes years to get completed. The long drawn out procedure is harassment to parties and can lead to uncertainty and disturbance in business.
4.IP Invalidation
– In certain instances, IP litigation can also lead to cancellation of the intellectual property rights themselves. For example, a patent may be revoked on grounds of prior art or on any other ground of invalidity that may go a long way to deterring the party from enforcing its rights.
Conclusion
IP litigation is also a most precious tool through which intellectual property rights are caused to stand and guarded. Technology, innovation, and creativity are what the world is coming to depend on, and the landscape of IP litigation is one upon which individuals and enterprises need to acclimatize. Whether patent infringement or trade secret misappropriation, IP litigation is a forum through which imbalances are smoothed out and intellectual capital of worth preserved.
Although IP litigation is undesirable, i.e., cost and complexity, it is an instrument in the defense of intellectual fruits of labor. As long as there is good legal counsel and strategy, corporations can venture safely into the arena of IP litigation and successfully defend their inventions.
Frequently Asked Questions (FAQ)
Q1.What is the difference between IP litigation and arbitration?
IP litigation is court settlement of intellectual property conflicts, while arbitration is another independent mechanism for conflict resolution where a third impartial authority resolves beyond the court. Arbitration might be less expensive and more efficient than litigation but possibly less open record or judge-made law.
Q2.How long does IP litigation take?
In IP cases, there is just too much at stake based on the intricacy of the case and jurisdiction. IP cases typically take years to months to settle. Patent cases are really one of the longest ones.
Q3.Am I able to sue for IP in any court?
No, IP cases are to be settled by jurisdiction courts that deal with intellectual property case. There are special courts or courts of IP tribunals in some countries that settle such cases, but in some countries IP cases can be settled in civil courts.
Q4.How expensive is IP litigation?
The cost of IP litigation is high, usually tens of thousands to several million dollars. It will depend on the level of complexity in the case, how large of an expert witness will be needed, and for how long the trial will be.
Q5.What if my IP is infringed?
When your intellectual property is being infringed, you can find relief in judicial relief for IP litigation. It may result in a court decree of injunction against infringement by the defendant, damages, or otherwise compensatory relief. Alternatively, you can try alternative dispute resolution like mediation before you go for litigation.