The rights and wrongs of IP protections

John Mackenzie looks at the rights and wrongs of intellectual property protections. 

29 May 2018

In the knowledge economy it seems obvious that intellectual property is the backbone of most businesses. How a product is made (patents); how it is remembered (trademarks); what it looks like (design rights); all form part of the network of rights that can protect the effort that goes into building a business.
The data that is generated by businesses is increasingly valuable, so database rights and copyright of those databases may also apply. If those rights are properly secured then that can allow businesses to legitimately keep competitors out of the market, or even leverage those rights to raise capital.
And with a relatively modest investment in the cost of registration of intellectual property rights, businesses can also generate additional revenues through licensing those rights. This can be a welcome additional revenue stream where the business perhaps doesn’t have the time or capital to properly exploit the rights that they have. Intellectual Property (IP) rights are there to encourage and protect the effort that goes into the development of a brand, the creation of an invention or the writing of a song. With a little bit of legal input at the outset, modern businesses can generate profit from their own sales efforts, and multiply those profits by working with others.
Once a business has secured their intellectual property rights, many people think that is the job done. They hold a certificate for their patent or trademark registration – their rights are secured. Unfortunately that is not the case. The registrations give a monopoly right, but inevitably there will be situations where someone infringes those rights.
Ideally a phone call explaining the situation will resolve the issue. The infringer will change their behaviour. If it doesn’t then a warning letter explaining the rights that are held might encourage the infringer to stop what they are doing.
If that doesn’t work, then the last line of defence is the courts. Those who own intellectual property rights can apply to the court for an order, an interdict or injunction, to stop the infringer doing what they are doing. If the infringing activity has been going on for a while, it might also be worth applying for damages. But every business knows that going to court is time consuming, expensive and often risky.
A recent development that can address the issues of cost and risk is the growth of litigation funding. Many litigation funders are willing to provide funding for the protection of IP rights in the courts, particularly where there is a portfolio of rights that need to be exploited. Funding for the protection of IP rights is considered on a case by case basis, but it is a useful way for businesses to de-risk their IP strategy.