What do you do if your food science innovation is at risk of intellectual property infringement?

Before "understanding the extent of the infringement" you need to investigate it. Investigation and evidence acquisition at the earliest stages, especially in jurisdictions without discovery like China, is key to a successful enforcement. Chinese courts are not pro-active and therefore, you need not only to acquire evidence on your own, but conduct appraisal according to Chinese law before you file the lawsuit, especially if it is a patent or a trade infringement case in China.

In the context of food science innovation, a comprehensive risk assessment for IP infringement should also consider the potential for cross-jurisdictional challenges, especially given the global nature of the food industry. It’s important to understand the enforceability of IP rights in different countries where the product may be sold or manufactured. Additionally, assessing the financial impact of potential infringement, including the cost of potential litigation and the value of the infringed IP, is crucial. Engaging with IP valuation experts and considering the market dynamics can provide insights into the strategic importance of the IP and guide decision-making on whether to pursue legal action or seek alternative resolutions.

Filing defensive patents after one has already been infringed might be a late move. Patenting strategies must account for infringements and devise the right protection strategies at the earliest stage. Also, making use of other IP rights (designs, utility models, trademarks), could help reduce the commercial impact of the patent infringement. For example, having a good trademark could overcome risk of losses as the end users of the patented invention might still prefer your embodiment thanks to the value associated to its trademarked brand.

Enhancing IP protection is crucial for safeguarding innovation and maintaining competitive advantage. Beyond patents and trademarks, consider protecting trade secrets through confidentiality agreements and secure data management. Additionally, copyright can shield creative works and software, while design rights protect the aesthetic elements of products. It’s vital to monitor the market for potential infringements and enforce rights through legal channels when necessary. Effective IP management can also attract investors and partnerships, fostering business growth and innovation.

For thirty years I have been litigating patent and trade secrets infringements in China. In this jurisdiction engaging an offender is often futile, will warn them and allow them to prepare for the upcoming action and will surely compromise your chance of winning a civil lawsuit. One of the key elements for China IP litigation is surprise. If you miss on that ingredient, your engagement strategy will likely fail. Most warning letters sent to Chinese IP infringers will go unanswered, repeating the exercise may even lead to the filing against you of negative declaratory actions. Rarely a pre-litigation engagement in China can lead to a satisfactory settlement of the case. In sum, file action first and then settle if convenient.

When addressing IP infringement, it’s essential to maintain a balance between firmness and openness to dialogue. Offering alternative resolutions, such as co-development or partnership opportunities, can transform a conflict into a beneficial collaboration. It’s also important to educate offenders about IP laws and the value of your IP, which can prevent future infringements and foster respect for intellectual property rights. Always document interactions and agreements to ensure clarity and legal standing.

The rule in IP is simple: if you do not enforce, they will keep hitting on you. Look at trademark counterfeiting for example: two competing brands. One is not active in enforcement, the other is active. After a few years, the infringers will all move on to the first brand.