How To Monitor Your Competitors’ Patent Intellectual Property.

Summary

This article describes why it is important to monitor your competitor’s intellectual property.

Why you should monitor your competitor’s intellectual property

Keeping an eye on your competitors’ patent rights is essential for ensuring the technological freedom to operate of your company or business. For example, should a court find patent infringement in an infringement suit, the court is empowered to graft relief in the form of an injunction to prevent your company or business from continuing to use the technology, and at the option of the plaintiff, either damages or an account of profits, possible resulting in the financial ruin of your business or company.

Furthermore, company directors who are indifferent to infringing intellectual property rights stand to be held personally liable for infringement. For example, in the recent Federal Court of Australia case of (Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited [2010] FCA 108), the court held that a company directors indifference to the possibility of patent infringement was a factor in holding a company director personally liable for patent infringement, stating ‘he was aware of competing products on the market and was indifferent as to whether or not those products were protected by patents’.

Regular intellectual property monitoring and reporting should form part of every director’s or business owner’s ongoing due diligence.

As such, it is vitally important that company directors, business owners and the like maintain a regular watch of intellectual property, not only to ensure the survival of the company or business, but also to avoid being held personally liable for infringement.

The benefits of monitoring your competitor’s patent intellectual property

Preventing your competitors from gaining patent rights that could adversely affect your technology in the future

The Australian Patents Act provides several mechanisms for preventing the acceptance or grant of you competitor’s patent applications. Generally, these mechanisms have certain time limits during which they are available. Failure to take advantage of these mechanisms may result in expensive litigation being your only recourse. For example, the opportunities provided by the Australian Patents Act include:

‘Interfering’ during examination of your competitor’s patent applications by submitting prior art documents to destroy the validity (novelty and inventive step) of your competitors’ patent claim(s). As such, it is essential to monitor the filing of competitor’s patent applications.
Opposition proceedings to oppose the acceptance of your competitor’s patent application. As the opposition period is only available for three months, it is essential to know when competitor’s patent applications have been accepted.
Requesting re-examination of your competitors granted patents. As such, it is essential to monitor your competitors’ patents have been sealed/granted.
Oppose extension of time applications. Certain of your competitors’ omissions, such as failure to pay a renewal fee during the prescribed time, are opposable.
Oppose applications for amendment. Certain of your competitors’ applications to amend a patent specification are opposable.

Identifying opportunities

IP Monitor intellectual property reporting allows for the monitoring of patents and patent applications by title, technological classification and the like, allowing for:

Identifying opportunities as a result of lapsed patents and patent applications relating to a particular technology.
Identifying gaps in the technological landscape by monitoring filed patent applications relating to a particular technology.
Recognising industry trends by monitoring the number of applications filed or accepted over time.

Where to from here?

As such, it is essential to keep track of your competitors’ patents and patent applications as they progress through the patent prosecution pipeline. See our tutorial on how to monitor your competitors’ patents and patent applications.

If you have any questions about how to go about monitoring intellectual property or need assistance in setting up an intellectual property monitoring report, please contact us.

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