Mediation is a potentially efficient and cost-effective alternative to traditional litigation and arbitration. The use of mediation has become increasingly popular in several areas of dispute resolution and one such area is that of intellectual property (IP).
As the field of Intellectual property is vast, here the importance of mediation as an alternative to both litigation and arbitration in patent infringement disputes is discussed.
A patent can be defined as a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention typically for 20 years during which the product or process cannot be exploited by others.
Patent disputes typically arise when patent rights are breached i.e Patent infringement occurs when a third party makes, uses, sells, offers to sell a patented invention without the patent owner’s permission. The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. Therefore, patent infringement disputes involve courts interpreting and evaluating the claims of a patent on which the protection is sought. This is a complex procedure and the litigation process often become expensive and complicated. In the defense of infringement party allegedly responds with a counterclaim of patent invalidity and a defendant involved in patent litigation may ask to reexamine the patent being litigated. During re-examination the court will reconsider the validity of original patent and whether it meets the statutory requirements of novelty, inventiveness and non-obviousness. If a defendant successfully pleads the defence of a patent the patent owner will lose not only the case but also the patent itself.
Alternatively, mediation in patent infringement disputes can save time and money by avoiding the interpretation and reinterpretation of patent claims. Also, mediation removes the risk of patent invalidation and promotes creative solution in patent disputes. Moreover, unlike litigation, mediation process is confidential.
For example- A company holding patent rights for a technology founds that its competing company is selling the same technology without any license. The concerned company threatens to file patent infringement case in all jurisdictions in which the company is holding patent rights. But the mounting cost of legal action would take a toll on the company and the litigation process is very time consuming. In such a situation, mediation is instrumental in transforming a hostile situation in which the parties were preparing to engage in prolonged and expensive litigation into one in which they were able to conclude an arrangement which suits the business interests of both parties and ensures the profitable use of the technology in the service of those interests.
Mediation is a great idea and can offer people a way of working things out without spending lots of money which could be better spent elsewhere to grow a business.
“If people are willing to bet on a lot of crazy notions, knowing that while some won’t work out, one breakthrough can change the world”. – Bill Gates
What is a Startup?
As defined by Department of Industrial Policy & Promotion(DIPP): Startup means an entity, incorporated or registered in India :
Not prior to seven years, however for Biotechnology Startups not prior to ten years,
With annual turnover not exceeding INR 25 crore in any preceding financial year, and
Working towards innovation, development or improvement of products or processes or services, or if it is a scalable business model with a high potential of employment generation or wealth creation.
“Build something you believe in — because that’s the first step to building a great brand.”
At the initial stages of setting up any organization, every entrepreneur is faced with a large number of challenges. All these challenges are hefty reminders that owning and Running a successful business is definitely not easy. It’s worth it though!
“Don’t aim for 10% improvement. Make it radically better and different.”
Before diving into the deep sea, founders should know that every legal decision they take has a potential to impact the company’s partners, investors, employees and customers. Therefore, it is essential that the founders develop an understanding of basic legal principles and practices associated with building a business.
Tax Laws and the Basics of Accounting
Every organization in the world, be it involved in any kind of business as to pay taxes to the Central, State and/or local/provincial government(s), as the case may be. It is essential for every new entrepreneur to be aware about accounting details and tricky lanes of the taxation world. An aspiring entrepreneur should have sector and area-specific knowledge of taxation because the taxes applicable to different sectors, geographical regions and/or products vary greatly and it is obligatory to be acquainted with any recent changes that have taken place.
Structuring the business-Choosing the type of venture
The most important thing before pulling up a startup is selecting a legal form of conducting business. It is indispensable to determine whether you want to have a private limited company, public limited company, partnership firm, or a limited liability partnership, depending on your long-term goals and vision.
Each form of business will be governed by separate principles and laws. Not complying with the relevant laws means hefty sums will have to be paid to the Government. Thus, heavy loss before you can even start making profit.
Labour and Employment Laws
When you start an organization, you will eventually have to hire new people.
Even if you plan to have independent consultants and contractors working with you or outsource, all these employee-employer relationships will be governed by labour legislations. Breaching these will not only harm you financially but would also harm your goodwill, even before it’s built!
Securities laws regulated by the Securities and Exchange Board of India (SEBI), will assist in managing the various stages of life cycle of business including fund-raising. Foreign direct investment, angel investors, crowd funding, venture capitals and even joint ventures are areas that a new entrepreneur must be aware about. It will help increase the profitability of the organization.
Information Technology (IT) laws
Today in this highly-digitalized, and technologically advanced era you inadvertently need the knowledge of Information Technology (IT) laws before starting a new business in order to protect your confidential data from any infringers or hackers.
Despite being a small organization, a sound knowledge about corporate governance and management will help an aspiring entrepreneur in effectively managing the organization and formulate further expansion plans.
A business survives on contracts. No organization would come into existence without the use of contracts. Therefore, basic knowledge regarding fundamental principles of contracts, arbitration, mediation, conciliation certainly helps!
Intellectual property laws
Legally protecting intellectual property is of supreme importance to any business. Hence, filing the right patent/trademark/copyright claims, and timely IP audits of your organization, would increase the profitability of your venture manifold.
Thus, in order for an entrepreneur to sail his ship of business smoothly, a decent knowledge about some of the important legal laws mentioned above is of utmost important.
“ Find the perfect business idea and start building your business today. Build the enterprise and the brand as if you’ll own them forever.”\
We at Tech Corp International Strategist(TCIS, India) have an expert team of Indian lawyers who assist Startups with patent, business brand, trademark and logo registration in India.
List of legal services offered by Tech Corp International Strategist (TCIS, India) to Startups in India-
Incorporation of different types of Companies,
Formation (procedure) of Companies,
Financing the Companies,
Filing of various forms and Returns with the Authorities,
Promotion of a Company,
Contracts and Conversions,
Transfer and Transmission of Securities,
Intercorporate Loans and Investments,
Economic and Commercial Laws,
Investments in India,
Transfer of Property,
Contracts and Agreements,
Registration of Documents,
Cost and Management Accounting,
Activity Based Costing,
Various heads under which total income is calculated,
Deductions from income Calculation of Tax of HUF/Companies etc,