We were recently instructed to act for software development company, to defend the alleged infringement of another company’s intellectual property rights.
A competitor of our client (which is a large national software supplier across different industries) instructed their solicitors to send a letter to our client alleging that its software infringed the intellectual property rights in the competitor’s software.
The competitor threatened to apply for an immediate interim injunction if our client refused to take its software off. As our client’s software had only recently been launched, to remove it from sale would have had a disastrous impact on its business.
We met with our client to better understand its software and to establish exactly how the underlying source code was written, to help build a case for independent creation. We prepared a response to the letter our client had received from the competitor’s solicitor, agreeing to provide limited undertakings and an explanation as to why its software had not been copied. To put the matter beyond doubt, our client invited the competitor to agree to an independent expert comparison of the parties’ software source codes.
This approach had the tactical advantage of removing the possibility of the competitor being able to successfully apply to the court for an interim injunction, and avoiding the commencement of a claim pending the resolution of the dispute with the input of an independent expert.
Extensive negotiations took place about the terms of the independent expert’s instruction, to ensure the comparison was conducted under the terms of a confidentiality regime and that the process was fair to both parties. The comparison took place and the results showed that our client’s software was independently created and the claim was subsequently withdrawn.
Speed of response and establishing a clear strategy were crucial to achieving the client’s objectives of being able to prevent its product launch being stifled by a much larger competitor organisation and, ultimately, proving that its software was independently created and not copied from the competitor’s source code.