Intellectual Property challenges during pandemic times

Nowadays most of us are worried about health, safety, environmental and operational risks, however, IP-related issues are highly relevant and pose a direct threat to business health and financial situation if not handled in time or adequately mitigated. Let´s take a look of how to identify and manage internal and external IP risks. It is common that IP risks originate from within the company, one example, when losing the novelty of an invention by prior public disclosure. On the other hand, external IP risks are usually caused by the company’s environment, for example, receiving a sue for infringement of a competitor’s Intellectual Property Right (IPR). If we do not identify and mitigate internal IP risks, a natural consequence could be the non-exclusivity for own products, services or technologies. As a colateral effect, this will limit the competitive advantage and will result in a potential loss of revenue, for example, through increased sales of counterfeits.

In addition, if we neglect external IP risks often results in high costs for avoiding the infringement of third parties’ IPRs, be it through litigation, licensing or the cost-intensive late development of circumvention solutions. Considering this scenario, a company can even be held liable for IP problems of its contractual partners, such as suppliers.

In light of the pandemic situation we are living, most of the companies face revenue losses, and it is crucial to be able to rely on “Plan B” strategies to keep business going and clients satisfied. After protecting the core business by the right IPRs, an additional critical factor is to prevent others from free-riding on one’s innovations. at this point, it is worth noting that IPRs that are not enforceable due to an insufficient protection scope or an accidental early disclosure of invention are typical internal IP risks that often lead to the loss of exclusivity and revenues.

If your company suffer any of the commented problematic situations, then, a systematic IP portfolio assessment can help you to identify IPR protection gaps or enforceability problems and safeguard the core business of your company in the primary markets while managing the cost side carefully.

Now, talking about external IP risks, you should also consider that current crisis did not hit all regions or technological companies around the world at the same time and with the same impact. While some countries and industries were not seriously affected or are already on the upswing again, others are still profoundly impacted and probably have to face a more extended period of economic depression or social problems. And, unfortunately for some, the worst is yet to come. What companies from such regions do not need in the current situation are aggressive competitors, or patent trolls from “post-crisis-economies” suing them for IPR infringement or trying to invalidate crucial IPRs. In such scenario, attackers could benefit from reduced resistance, as many defendants have limited financial resources to fight off infringement charges. For the commented situations, litigation costs and potential damages would even further diminish the already limited liquidity of many companies and industries around the world.

Consequently, if your company is facing tough times, then, the IP department is often one of the first within an organization that has to analyze risks and plan an efficient and clever strategy for protecting your valuable IP portfolio. Very often, IP managers suffer from frozen budgets and see their activities being perceived as “not important enough”, however, during crisis times all your IP cases should be studied and valued in order to have a strong strategy for increasing the IP opportunities of your company.

Please always remember that IP is a valuable intangible asset that becomes even more relevant in challenging times and beyond. Through current world-wide situations, IP managers can make themselves heard by clearly pointing out how important it is to identify and wisely mitigate internal and external IP risks and by demonstrating how their activity impacts and secures future business success, based in the importance and specific weight of the corresponding trademarks, patents and related IP cases. If your company achieves said goal, then, your IP department will be perceived as an important figure that ensures the company’s cash flows during current crisis, and a promissing light in the near future which will bring your company to a safer region between uncertainty seas around.

Manuel López Robles / Mónica Ramírez Pinson