“You Can Win” is Dangerous Advice

Very few businesses want to win a lawsuit, especially over intellectual property. They’re expensive, distracting and rarely satisfying. What you want is your problem solved, the lawsuit stopped, and the legal fees ended. IP litigation is a business decision that likely has a business solution. It’s not a lawsuit to win, but a problem to be solved.

Most IP Lawsuits Settle

That’s because business owners ultimately make business decisions. I’ve only been involved in a few IP suits that went the distance. The most memorable was a patent fight between two wealthy business owners who despised each other. My client was being sued for infringement. In our first call, I asked if we could get a license. He said, “Yes, for a one-time fee of $17,500.”

I said, “Take it! We can’t fight a lawsuit for that amount.”

He said, “No, it’s the principle of it.”

Three years later, after more than $1 million spent by each side, we won at trial, lost on appeal, and about to start a new trial.  They settled for $17,500.

Principle is never a good strategy.

Creativity Can End Lawsuits

A few years ago, I was asked to help resolve a money-sucking patent lawsuit. Each party was told they could win, but never considered a business win. That’s the question I asked.  And within ten days the suit was settled. The patent owner agreed to private label the product for the accused infringer.  This was a win for both, and a result that wouldn’t have happened by “winning” the lawsuit.

Years later, the defendant is now the patent owner’s best customer.

Consider All the Possibilities

There are many strategies for resolving lawsuits short of a trial: product redesigns, finding evidence that invalidates the patent, and negotiating cross licenses. But you must change your definition of winning.

In another case, a company we were defending agreed to give up their premier location at the Chicago Tool Show. We learned of the plaintiff’s interest when one of our engineers talked to a friend who said they coveted that space.  The plaintiff really wanted it, and we didn’t, because of the cost.  We gave them the booth and the case was settled. That’s creative.

Obviously, some cases won’t settle, but most do. It’s always better to find a mutually agreeable solution rather than let a court decide your fate.

There are many, many, other ways to resolve cases. If you would like to discuss your IP situation, give me call at 248-433-7381.

Bill Honaker, The IP Guy

About the Author:

Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter, click here.

To get answers to your questions click here. To schedule a time to talk, you can access my calendar by clicking here, email Bill@IPGuy.com, or call me at 248-433-7381.



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