Managing IP risk in our digital world

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Data analytics, digital platforms, robotics, virtual assistants, blockchain, IoT and wearables: companies are prioritizing and investing heavily in implementing new capabilities and technology priorities. While these capabilities and technologies promise increased business outcomes and the delivery of new value propositions for customers, every one of these gives rise to a number of intellectual property (IP) risks involving third party rights.

Trademarks

When it comes to trademarks, selecting a trademark requires some planning. It is a best practice to clear your trademark prior to selection in order to be sure that the mark is available for use and registration. Clearance and also protection through trademark registration are important to avoid investing in a brand that your company cannot use.

Patents and Trade Secrets

Patentability of the technology is important: if someone has secured relevant patent rights, a patent can offer them powerful protection by allowing them to prevent competitors from making or using that invention while it appropriates returns on innovation investment. 

Trade secret protection and related risk must also be on your radar. Many trade secret cases arise in rather routine scenarios where highly sought after employees leave for a competitor, through a failed collaboration or joint venture, or in a third party relationship that has soured.

Patent infringement as well as trade secret litigation can be complex and expensive. Dispute risk is real considering Canada is a technologically advanced economy, which is not only seeing a highly mobile workforce but also an increase in the number of patent filings in emerging technologies.

Copyrights

Using open source introduces IP-related rights and responsibilities -- particularly when it comes to copyrights. The greatest open source software risk stems from non-compliance with its license terms, which are far from straightforward. Care must be taken when incorporating open source software elements into proprietary software. Doing so might trigger certain license terms, such as requiring the user to distribute its modifications, including its own source code, to its downstream users or customers. 

Then there is the question of data. Data inputs are so fundamental to machine learning and yet, if those data inputs are protected by copyright laws, is text in data mining a copyright infringement? In Canada the answer is not quite clear and neither is the risk.

To understand the full spectrum of IP risk, it is critical to understand what aspect of new capabilities and technologies are protectable by IP rights, consider the state of the market, and consider any existing prior IP rights as part of an avoidance strategy. In doing so, your company can exercise diligent IP risk management and in the process, likely identify opportunities to secure your own competitive advantage.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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