In late 2010 the UK Strategic Advisory Board for Intellectual Property Policy issued a report about the costs and obstacles associated with enforcement of intellectual property rights.
The report was based upon a survey of people who had been involved in disputes between 2003 – 2009, but was limited to patent and registered design cases.
Patents are generally used to protect inventions. Online the most common use for patents relates to software. Design registration is generally used for the protection of industrial designs, rather than fashion designs, which are too quickly and easily copied. Industrial design might relate to mechanical parts etc.
Essentially, the survey found that you either sent a legal demand and quickly resolved the dispute, or you got engaged in long-winded and costly court action. There wasn’t much of an in-between position.
An interesting outcome was that mediation and arbitration were not favoured procedures for resolving IP disputes. This may have something to do with IP enforcement ending with a “you are/you aren’t” result rather than a collaborative resolution. An argument along the lines of “you can’t be a little bit pregnant”.
Factors influencing decisions to protect or not protect IP?
- Too costly. Some businesses have simply given up trying to protect their inventions.
- Reputational and financial costs of failure in an action to protect IP.
- Staff time involved in the process.
- Overseas enforcement simply unaffordable.
What the survey didn’t address was whether the lack of enforcement activity actually impacted the bottom line of the businesses involved in a measurable way. After all, it is a commercial decision and if you are making money regardless of the copies out there, how are enforcement procedures going to improve your position?