IP LITIGATION
Intellectual property litigation is changing. In common with the rest of the business world, litigation is becoming more digitized and this is enabling smaller teams to conduct litigation as effectively as large teams, but at lower cost.
Litigation in the India has historically been expensive due to certain features of common law litigation that have been deemed indispensable. These include, for example, disclosure, experiments, detailed expert reports prepared in contemplation of cross examination, and trial and the attendant logistics and time cost of preparing paper bundles.
Disclosure can be an expensive exercise. First, a significant amount of management and employee time will be spent retrieving documents from archives and other repositories. Traditionally, the litigation team has then spent time reviewing each of the documents in paper form, firstly to identify those relevant to points in the case and secondly to establish whether any of those documents are privileged or confidential.
A large amount of time and cost in patent litigation is incurred in interviewing suitable expert witnesses and then assisting the expert as they prepare their report.
Experiments can often be crucial in patent litigation, and litigants should not be discouraged from using them due to cost pressures. However, they can be expensive because it is best to design and then conduct the initial experiments in conjunction with the expert witness retained by the party, and then it is necessary to repeat them in the presence of the opposition together with the expert (again) and the legal counsel.
The more technical expertise a litigation team has, the quicker and less costly the design process and the more valuable the results and repeats.
Case studies
Mattel Inc., creators of the Barbie doll, won a huge case against rival toy doll maker, MGA Entertainment Inc. back in 2008.
MGA claimed that Mattel had copied their latest range of Bratz dolls in order to steal back MGA’s dominant market share. The designs were simply too similar, featuring disproportionately large heads and slim bodies.
However, lawyers working on Mattel’s behalf managed to turn the case around, proving that an ex-Mattel designer who had subsequently worked on the design team for MGA had used designs that he had created while employed at Mattel.
In fact, those doll designs were still the legal property of Mattel. MGA was ordered to pay damages to the tune of $100,000,000 and temporarily remove their dolls from shelves. It just goes to show, instigating an intellectual property claim can end up being an expensive miscalculation.
In 2011, Naruto, a curious macaque monkey in Indonesia picked up nature photographer David Slater’s camera and took one of the most famous selfies in recent years.
David Slater’s copyright infringement claim against those who had copied or downloaded the photo from his online posts was rejected, the court ruling that Mr. Slater did indeed own the camera, but not the photo.
A counter claim filed in 2015 on behalf of Naruto the macaque sought to claim damages against Mr. Slater and others, and secure the intellectual property rights under Naruto’s name as the author of a work of art.
The poignant argument in the case is whether it can be said that Naruto knew what he was doing. We know what we think – what about you?
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