You should consider third-party IP in formulating your IP strategy. Remember the discussion in a previous module regarding open-source software licences embedded in proprietary software. You should always consider whether you are relying on third-party IP in your own IP portfolio.
You need to do your “due diligence” about third-party IP not just for the sake of protecting your own IP but also to protect yourself from enforcement proceedings or costly licensing arrangements. As we have seen in respect of open-source licences, third-party rights can affect your rights in some of your own software. It is often worth conducting a due diligence analysis in relation to third-party IP to help you in the following respects:
- You can design your products in a manner that minimizes the infringement of third-party IP rights.
- You can set the price for your product, factoring in what it is going to cost you to license third-party IP.
- You can avoid enforcement proceedings that are not only costly but that can also force you to shut down your business.
In considering your IP strategy, it is important for you to be proactive not only from an offensive perspective but also from a defensive perspective.