Risk Management

New England Intellectual Property specializes in performing intellectual property risk assessments for our clients. 

An intellectual property risk assessment is an analysis of a corporation’s practices, products, and marketing materials to identify risk areas and to suggest modifications to minimize risks within the company. It focuses on minimizing a company’s intellectual property damages profiles and allows management to make intelligent decisions on risk areas. There are three key areas that are reviewed. The flow of products through the supply chain and indemnification clauses in purchase and sales contracts require an analysis. Web pages and other marketing materials need study for accuracy. And product feature sets need to be analyzed for obsolete features. 

An intellectual property risk assessment is not a patent clearance or a legal review of contracts, products and patents. It is instead a business review of risks associated with intellectual property matters. 

The analysis required in a risk assessment involves thinking like a patent plaintiff. How does a plaintiff determine who to sue for patent infringement? What thinking is involved in determining whether to sue a customer, a retailer, a distributer, or a manufacturer? What damages does a plaintiff think are available? Then the company needs to determine how to influence a plaintiff’s actions to minimize the company’s exposure and to maximize its benefit? 

Given that a company works in a competitive commercial environment, the goal of the risk assessment may only be to create a competitive advantage in how the intellectual property risk is managed. It is similar to the story of the bear and the two hikers. Rather than outrunning the bear, the hiker needs only to outrun his fellow hiker to survive. Where the intellectual property world intersects with the business world, a company only needs to manage its intellectual property matters better than its competitors to build a significant commercial advantage. For example, if a company can make it easier for a plaintiff to sue a competitor rather than itself, the company will have avoided the litigation and settlement costs, and be able to invest that money elsewhere, gaining a competitive advantage over the competitor. A regular intellectual property risk assessment is an important step in the responsible management of a corporation. In addition, these assessments may be critical at times of key changes such as a merger, an acquisition or when large initiatives are undertaken. Plans to launch a major new product line or to build a new factory may be instances where a corporation should evaluate the intellectual property risk.
Richard Baker,
Dec 30, 2011, 7:01 PM