Fight in the Wrong Way (no. 31 in our list of IP mistakes)
The ideal solution provides all the intended benefit of a solution without any drawback. Given this in an IP illustration, the ideal solution for patent enforcement is to have all the benefits of an enforced patent with no drawbacks, which when you drill down means to have enforcement without needing to enforce. To carry it over further to classical strategy, as described by the ancient philosopher Sun Tzu, it means to win without fighting.
Winning without fighting is an ideal solution that you can achieve with forethought in IP strategy. Sometimes, however, you will need to actually enforce your IP with all the drawbacks that can ensue. Still, using the ideal enforcement strategy as a planning direction, you may be able to avoid fighting the wrong way.
First, an IP trial is likely to be your costliest way to fight. It may still be the right way in your given circumstance, and is often the wrong way if you had other options. For example, maybe you could have used the threat of a court trial to achieve your end without actually going to trial. Just as in real wars, people tend not to engage in them unless they believe they can win well or believe they have no choice. Sometimes avoiding wars involves communicating ample evidence to dissuade a false belief or to show that a suitable option besides fighting exists.
Along the idea of paper, scissors, rock, sometimes a better way to fight does not involve a clash of two rocks, scissors, or pieces of paper – like-IP against like-IP – but leveraging one asset against another type of asset. A patent may defeat a brand, a brand may defeat a patent, or an apparently unrelated resource like a better sales team may prove decisive at winning a fight at something closer to the ideal – all benefit no drawback. Comparative benefits over drawbacks equations – benefits/drawbacks – can be your basis for determining whether you fought the right way.
(This is number 31 in our list of IP mistakes and how to avoid them.)
(Image credit: Hemera)