Infringe IP (no. 6 in our list of IP mistakes)

The surest way not to be sued for IP infringement is to not infringe.  While this does not guarantee that you will avoid some IP assertions anyway, having not actually infringed puts you on better ground than otherwise.  It becomes our mistake number 6 when infringement is done out of negligence or ignorance, and it can also be a mistake when done with any degree of deliberation if you have misjudged the consequences.  The impact of these consequences sometimes differs, depending upon whether your lead rule of measure revolves around a logical, emotional, or moral argument.

In any case, whether by accident or deliberation, an infringement creates vulnerability in that you have given over to another entity some aspect of value that it may extract by enforcing its right to exclusivity against you.  That creates an uncertainty in the viability of your position that will exist either until the infringed IP expires or the matter has resolved itself by some other means.  That uncertainty, like any uncertainty, can be assigned a risk reward equation, and the calculation of that equation can logically allow the risk of an infringement to make sense or not make sense based upon the potential reward.

In fact, it may be impossible in some industries, where hundreds of patents owned by numerous entities may read on a single product, to move innovation forward at all without infringing upon someone.  Any resulting attempt to not infringe could in fact be a mistake in its own right because innovation would grind to a halt.  So the bottom line on this mistake is to avoid moving ahead with blinders on and instead understand and prepare for the infringement risks – and then also to include within your IP program an understood element of ethics that it is the policy of your enterprise to maintain and the reason why.  In a business environment where open innovation models have gained traction, those businesses that have a reputation for fair play may be the first to hear about promising new initiatives from the outside.

(This is number 6 in our list of IP mistakes and how to fix them.)

(Image credit: out0fwave)

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