Be Prepared (It Applies to Your Intellectual Property Too!)

“By failing to prepare, you are preparing to fail.”
― Benjamin Franklin

Disaster preparedness seems to be on everyone’s mind this week.

With the effects of Hurricane Sandy lingering up and down the East Coast, the news media has been speaking out about the importance of being prepared when a disaster strikes.  I know that my family, along with millions of others, spent much of last weekend putting away lawn furniture, checking flashlights, and shopping for batteries, water, and non-perishable food.

Employees and business owners alike have spent countless hours trying to ensure that their companies can still operate in the wake of flooding and power outages.

One such story in particular struck me.  It’s the story of a data center, Peer 1, based in NYC.  The power went out, the flood waters came, and they’re keeping their servers running with the help of a generator.  A generator located on the roof of the building.

To keep that generator going, the employees (and their customers!) are carrying 5 gallon buckets of diesel fuel up 17 flights of stairs.

If that generator goes down, it will impact hundreds of customers, as thousands of websites will go down with it.  (As a lawyer, I hope they have a really good Force Majeure clause in their customer agreements.)

That’s a lot of pressure, but it seems like they were prepared.  They had the generator in place and made sure they had fuel on hand.  They even found help when they needed it.

Peer 1 had one more thing on their side, warning.  Hurricanes don’t show up unexpectedly, so they had time to plan and mitigate any damage.

But often times catastrophe strikes without warning.  If that happened, would you be able to make a “bucket brigade”, or its equivalent, to save your business?  Would your customers come to your rescue?

All of this got me thinking about intellectual property.

Companies are faced with intellectual property disasters every day.  Disasters they never anticipated and are ill prepared to handle.

What is an IP disaster you might ask?  Well, here are a few examples:

-  You receive a cease & desist letter (or worse, you get sued outright for patent infringement.)

-  You discover that a competitor is about to launch a product that looks an awful lot like yours.

-  You find counterfeit goods are being sold in the marketplace.

-  You stumble upon your artwork or photos on Pinterest, someone’s website, or printed onto t-shirts without your permission.

Any and all of these events happen to unsuspecting businesses everyday in the United States, and most small or medium-sized companies are not prepared for them, especially when it comes to patent litigation.

One patent lawsuit could wipe out your business more completely than any hurricane.

The number of IP related lawsuits in general, and patent suits in particular, are increasing.  Companies are doing everything they can to ensure they protect their market share. If that means, suing somebody for patent infringement, then so be it.  Are you prepared to weather a patent litigation or protracted licensing negotiations?

Very few companies ever think they will sue someone, and they falsely believe they will never be sued, because they are small.

The idea that patents are the weapons for big business only is a myth.

Patent litigation doesn’t just happen to the likes of Apple, Google, or Microsoft, and if you aren’t prepared, one litigation could put you out of business.

I also anticipate that the number of IP disasters will rise sharply with the implementation of the First-Inventor-to-File Rules in March, 2013.

If you aren’t ready to file early and file smart before March 16, 2013, then you could lose valuable patent rights.

Many companies will not fully understand all of the implications of this change and how it impacts their business.  Unfortunately, they will be the first victims of the new system.

How your business handles unexpected intellectual property events will depend on how well prepared you are.

The best way to prepare for a possible IP disaster is to identify the intellectual property in your business early, protect it when appropriate, and monitor the marketplace for signs of impending doom.

Over the next several weeks, and in this month’s IP made simple Newsletter, I will be talking a lot about being prepared.  If you haven’t signed up for the monthly newsletter, you sign up here.

I hope you join me for the discussion.

If there are any issues that I don’t address and that interest you, please let me know so that we can talk about them in future posts.