- Patent infringement, even accidental, can be costly if not addressed promptly, but suing for an injunction or damages is not the only path — negotiating a patent license is often quicker, cheaper, and less contentious.
- Unlike a trial, negotiation lets both parties create their own lawful solutions, can be arranged much faster, and has the potential to build a productive ongoing relationship rather than an adversarial one.
- A court can force an infringer to stop, and award lost profits, a reasonable royalty, and possibly enhanced damages, but it cannot force the parties into a licensing agreement — that flexibility belongs only to negotiation.
- Negotiation is private, avoiding the negative publicity that can come with a public court decision, and it skips the time and expense of discovery, motions, depositions, and expert testimony.
- Even if you’d prefer to litigate, courts generally favor parties attempting to resolve disputes without judicial intervention, and a judge may require mediation or alternative dispute resolution before trial anyway.
Imitation may be the highest form of flattery, and if flattery could be turned into gold, then there would be no need for patents.
The truth is that patent infringement, even by accident, can cost you dearly if you don’t address it as soon as possible.
Patent owners always have the option of suing for an injunction and/or damages against you for violating their patent. However, there are quicker, cheaper, and less contentious ways to resolve a patent dispute, such as negotiating a patent license.
Why Negotiate?
Negotiation is a civil, collaborative effort between parties to resolve differences, unlike trials, where two parties seek the justice system to resolve their dispute. They allow parties to talk about their interests and find out what the other side thinks and wants.
Unlike trials, negotiation allows the parties to create their own (lawful) solutions. A negotiation can be arranged much more quickly than a trial.
More importantly, negotiation can build a relationship, and negotiating a patent license may be more lucrative and productive in the short- and long-term. The cost of negotiation in time, money, reputation, and emotional resources is potentially far less than with litigation.
What If I Would Prefer To Go To Court?
You may choose to fight rather than take a license. You certainly do have that choice, and those who feel that they are 100% in the right may go this route.
Your lawyer, on the other hand, may encourage you to negotiate the matter and settle out of court because he or she believes, based on the facts, you’re more likely to get a better outcome this way.
Think about why you want a trial. Do you want to air your grievances in public, or do you want to go to court to get what is owed to you?
You might end up going to court anyway if negotiations don’t work.
Courts actually prefer that people attempt to resolve their disputes without judicial intervention. It’s also possible that a judge will force you into alternative dispute resolution or mediation to settle matters before going to trial.
What Can Negotiation Actually Do For You?
Negotiations can do for you almost everything that a court decision or order can do for you, but with more flexibility.
For example, a court can force your opponent to stop infringing on a patent and pay lost profits, a reasonable royalty, and possibly enhanced damages. It can’t force the parties to enter into a licensing agreement. A negotiation is a private affair, but a court decision is public.
Negotiation can keep you from getting negative publicity. The court can’t get creative; it has to do or not do what the parties ask it to do. Creativity belongs to the parties, who can create alternatives before and during a negotiation.
Negotiation makes business relationships, but litigation can destroy them. Negotiation doesn’t require discovery, motions, court appearances, depositions, or expert testimony, so negotiation can save time and money.
A patent attorney can represent you in patent infringement negotiations. A patent attorney has the right combination of legal and technical knowledge to help you create a fair agreement.
