Remedies

Copying may be a sincere form of flattery in some instances, but in a business it is flattery you can live without.  Unfortunately, using our judicial system to successfully prevent or stop copying and penalize a competitor for such copying means convincing a judge of three things.  A first prerequisite is that you own an intellectual property right, such as a patent, copyright or trade-mark.  A second prerequisite is that your property right is valid and sufficiently broad to cover the copying activity by our competitor.  The third prerequisite is that you have suffered, or will suffer, damage to your business as a result of the competitors copying, or that the competitor has made a profit by the copying.  To successfully establish the first and second prerequisite requires planning and action, usually at an early stage, and usually involves a careful consideration of the following questions:

1. What forms of intellectual property protection are available and appropriate?
2. Where are the technical improvements in the product over existing products already in the marketplace?
3. What is the state of the art as indicated by the patent search?
4. Are there any unique improvements left after comparing the technical improvements in the product (identified in question 2) with the state of the art (identified in question 3) and removing from consideration those technical improvements already present in the state of the art?
5. Assuming the answer to question 4 is yes, is protection for any of the unique improvements commercially worthwhile?
6. What does the appropriate intellectual property protection cost in the short term, and in the long term, to provide protection for the commercially worthwhile unique improvements identified in question 5?