How do I identify exactly which parts of my work or know-how are at issue in an IP dispute?

“They copied our software” or “they used our know-how” describes a concern, but leaves important questions unanswered. Which code or information? Which version? What do you say the other party did with it?

Start with a description that your lawyer, a technical expert and ultimately the other party can examine. The aim is to make the subject of the disagreement clear enough to test. The legal requirements depend on the right and country concerned; the examples below focus on copyright, unregistered designs and trade secrets.

Identify the material and the relevant version

Give each disputed item a short reference and locate it within the underlying records. For software, that might mean particular files and functions in a specified release. For a design, identify the drawings or photographs and the appearance they show. For know-how, specify the process, settings, formula or combination of information concerned.

Use the version relevant to the alleged events. If you shared release 2 with a contractor, do not silently substitute release 5 when describing what the contractor received. Explain subsequent changes separately.

A whole work or a combination of elements may be at issue. Precision does not require reducing everything to isolated fragments. It requires explaining whether you are relying on the whole, particular parts, their combination, or more than one of these.

Explain what you claim is protected

The same product can contain several kinds of material, with different grounds for protection. Separate them in your description so that each can be assessed on its own terms.

For copyright, identify the expression concerned: for example, particular source code, text, drawings or images. Explain which material you say has been reproduced. A shared business idea or similar functionality does not, by itself, identify copied expression. WIPO’s copyright guidance explains the distinction between expression and underlying ideas or methods.

For an unregistered design, identify the appearance concerned and the features or combination you rely on. Include views that let a reviewer see those features in context. In the EU case Karen Millen, the Court distinguished indicating what gives a design its individual character from having to prove individual character to benefit from the validity presumption. The defendant could still challenge validity. The practical lesson is to identify the claimed features clearly without assuming that every aspect of validity must always be proved afresh. See the Court’s explanatory summary; this is an EU design example, not a rule for all unregistered IP.

For trade secrets, identify the actual information claimed to be secret, rather than a broad category such as “manufacturing expertise”. Explain the boundaries of that information and why you say it qualified for protection at the relevant time. WIPO treats identifying the secret, establishing its protected status and proving misappropriation as separate tasks in its litigation guidance.

Distinguish your claim from the surrounding material

Mark public information, third-party material and elements you are not claiming as your own. Where you rely on a particular combination, explain the combination rather than implying that you own each ingredient separately.

Consider a hypothetical dispute about a coating process. “Our coating technology” is too broad to show what is contested. A more useful description might identify the sequence of operations and parameter ranges in a particular process sheet, while acknowledging that the equipment and a published base formulation are already known. Whether that combination qualifies for protection remains a separate assessment.

Also distinguish ownership from identification. Naming a code module precisely does not establish that your company owns its copyright. Link to the relevant contribution records, agreements or other basis for your entitlement; see evidence of authorship and ownership.

Connect each item to the allegation and its supporting evidence

Prepare a short working list for your adviser. For each item, record:

• The material: its reference, version and exact location in the source records.
• The claimed protection: what you say is protected and the basis for that position.
• The alleged conduct: what you say the other party copied, obtained, disclosed or used, and when.
• The evidence: the documents, samples or observations supporting each statement, including evidence pointing the other way.
• The gaps: what you cannot yet establish or would need further evidence to assess.

In the coating example, a contractor’s receipt of the process sheet and a competitor’s later launch are two separate observations. They do not, without more, establish that the competitor used the specified process. If you have not seen its production records, state that limitation. Do not fill the gap by describing suspected use as a known fact.

Existing dated records can help identify which version was available at the relevant time. A timestamp does not determine which parts are legally protected or prove that the other party used them. See what a digital timestamp establishes.

Keep the description traceable and confidential

Date the working description and link it to the existing evidence. A summary prepared after a dispute begins can explain earlier records, but should not be presented as a document created at the time of the events. If your understanding changes, retain the earlier description and explain the correction.

Keep confidential detail in a controlled document for your advisers. Identifying a secret for legal assessment does not require publishing it. Before including it in correspondence or court filings, agree how it will be disclosed and protected. WIPO’s guidance on confidentiality in proceedings explains why this needs attention: the secret must be identified while the other party must be able to answer the claim.

If you are responding to an allegation, use the same structure to identify what is actually being claimed against you. Flag unclear items and ask your adviser to seek clarification before attempting a detailed comparison.