Choose the Wrong Fights (no. 32 in our list of IP mistakes)
Of course following the ideal solution noted in mistake #31 and applying it to IP enforcement fights, a strategist can certainly achieve the complete opposite of the ideal solution. This would be a solution that provides all drawbacks and no benefits. Whereas the ideal solution is theoretical – you cannot have a zero in a denominator for the benefits/drawbacks equation – its opposite, the “perfect disaster,” is quite achievable. You can have zero benefits, and drawbacks can go on to infinity without violating any mathematical laws. Choosing the wrong fight means to choose a fight where the probability of achieving the perfect disaster is higher than other possibilities you might choose – and really comes down to asking if you can win and if the fight is worth the costs.
The benefits you expect to receive will be direct or indirect. A direct benefit could be to secure markets your IP protects through enforcement that keeps a competitor out. An indirect benefit could be to make an example through enforcement that others will see, causing them to avoid infringing and achieving a like response from you.
Choosing the right fight involves both choosing a fight where you can achieve your objectives and where the achievement of those objectives delivers the benefits you want. This last is an important subtlety, and is why in a fight, both contestants can win and both can lose. If you recall the original Rocky movie by Sylvester Stallone, Apollo creed wins if he wins the fight. Rocky wins if he “goes the distance.” Both can declare victory when both achieve their objectives within the same fight. It became the “right fight” for Rocky when he understood that he did not need to actually win to achieve the meaningful result he wanted.
When you fight with IP consider the benefits you wish to achieve and the potential drawbacks. See if there are other ways or other fights that can deliver the benefits you want that either raise your probability of success or your degree of freedom of benefiting from variable levels of success – i.e. can you win by “going the distance” or do you have to actually win the fight? It’s a measure IP strategists take all the time. Think about validity challenges. Do you actually need to invalidate a competitor’s patent, or does the reasonable possibility of invalidity allow you to achieve the same result, perhaps securing a license.
(This is number 32 in our list of IP mistakes and how to fix them.)
(Image credit: Hemera)