Some of the Things to Consider for Intellectual Property Litigation

While at the AIPLA mid winter institute, there were a lot of issues and strategies involving litigation discussed. These issues can shape the litigation strategy that affects a small business owner.

Some of the considerations to consider are the cost of discovery (the cost of providing to the other sides copies of documentation proving that your company worked on the project and the dates, development strategies to prove that the idea was yours, and the modifications your company made to the concept in question to get the idea to work). Discovery can be quite expensive, as it can include emails of correspondence between people working on the project, retrieval of electronic discovery and other methods of data retrieval, and can cost as much as the actual litigation itself.

Another consideration is the strategy of hiring a special master to hear the case in lieu of a judge. The cost is born by the parties, so it is an additional cost, but it can be more cost effective overall as litigation proceeds.

Another consideration is preservation of data. Immediately, a business owner needs to stop any and all deletion programs on their email for correspondence between employees and others. All data on all computer drives should be backed up and stored at a separate location. Failure to immediately institute a “stop deletion” program by a company can have disastrous consequences, as a the data may not be recoverable and the court may look poorly at you for deliberately hiding correspondence. Settlement awards may also reflect the lack of saving data. The Third Circuit took the approach in one case that since a party failed to stop deleting email, the other party was entitled to review all emails, and see the attorney’s notes. This was a serious penalty, but by the same token the court viewed the company’s failure to preserve data when in litigation to be an egregious error.

Similarly, a company will want to preserve instant messages and voice mails, and have those storage sites backed up, as they may be subject to spoilage. In larger cases, a person may have to be retained to institute a key employee person by person search.

When litigation commences, it is always important to have a settlement strategy in mind. At one point or another in the proceedings, the court will invariably ask if it can be settled outside of the court’s hearing, (or the court may order the parties into a settlement conference). It is always important to know what that settlement strategy is before ever entering the courtroom.

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