Intellectual Property Your Most Valuable Asset

 Creating and Protecting IP is critical to your business 

We have supported IP litigation in the US on many occasions when clients either believed their IP had been infringed, or were accused of infringement. Equally we have provided advice to inventors and companies on how to avoid litigation in the first place. It is always preferred to spend a little time and money avoiding infringement rather than defending a costly, time-consuming patent infringement lawsuit when a product is in production. 

Although the concept of patent infringement can be complex and confusing to many, it is easy to understand why many entrepreneurs and small businesses choose to turn away and ignore the risks, rather than investigate the potential infringement issues up front. Ignoring infringement risks bankrupting even the healthiest small business, and only the larger companies may be able to ride out the storm.

We live in a technology based world, many companies rely on their intellectual property being their most valuable asset. Corporate strategies often include protecting their intellectual property by copyrights, trademarks and trade secrets through licensing, with aggressive enforcement of patents. Several recent patent infringement damages awards have reached the billion-dollar level, and as such can never be underestimated.

From an investors point of view, this probably carries the greatest risk, but in our experience a risk many have not considered seriously enough.

In supporting clients we evaluate the infringement risk if the task is based around due diligence for an investment opportunity, either on behalf of the client or the investor depending who we are representing. Having carried out the prior art investigations, in the event of a possible breach we begin by evaluating the technical details surrounding the breach by analysing the IP on both sides if necessary. In the event a breach is confirmed we use the Panduit test to help determine whether profits have been lost as a result of infringement.

  • Demand for the patented product
  • Absence of Acceptable Non-infringing Substitutes
  • Manufacturing and Marketing Capability to Exploit the Demand
  • The Amount of Profit That Would Have Been Made

The conclusion of the Panduit test, assuming all four conditions are met, then allows the calculation of lost profits by assessing the ‘The But-For Behaviour of the Infringer’ and the ‘The But-For Behaviour of the Patent Holder’. Finally, the conclusions are determined by;

  • Lost Sales
  • Lost Profits
  • Price Erosion Damages

Some of the negotiating we have carried out for clients has resulted in agreements being established, resulting in licensing agreements or out of court settlements on cessation of infringement, as opposed to a court case costing each party considerable sums of money.

IP Strategy Creation Service Available

An IP strategy from a business value creation perspective is essential to protect, monetise and maximise the value of the innovation being created in technology companies today, but alas, not many companies prepare or own an IP strategy.

 While many IP lawyers write blogs  surrounding the importance of IP, not many are writing about IP strategy topics. We work with companies to show their R&D teams how innovators can take charge of their IP strategy to create value and reduce risk. 

We create IP strategies for companies, usually when the company has been asked for a strategy by a potential investor. Contact us to discuss the subject of IP Strategy and we will be pleased to assist your company in this regard.

Intellectual Property Your Most Valuable Asset