Intellectual property: Blackberry suit highlights risks
by Johnathan E. Mansfield, Schwabe, Williamson & Wyatt
The recent settlement of the NTP/Blackberry patent case caused
a collective sigh of relief from thumb-typers
everywhere.
Though the risk of Blackberries going dark may have passed,
the case highlights the need to manage intellectual property
(IP) risks, not just for businesses that sell products
incorporating intellectual property but for any business that
uses products that may be covered by IP. If you are a manager
or business owner, there are two significant IP risks that you
should consider and prepare for — business asset loss and
infringement litigation.
Business asset loss
Whether you realize it or not, most of the assets that a
company uses in its business (other than real estate)
incorporate someone’s IP.
The Blackberry case drove this point home to millions of
businesspeople. Business assets, including mechanical
equipment, computers and software, may be covered by IP,
including patents, copyrights and trademarks. If the owner of
this IP is someone other than the vendor who sold or licensed
the product, your business risks losing the use of these assets
if a court finds infringement and enjoins the vendor from
selling, and you from using, the product.
Infringement litigation
The number of patent and other IP infringement lawsuits
continues to rise. While suits are filed against high-tech
companies that are accused of making a product that infringes
another’s patent, many lawsuits are also being filed
against companies that aren’t traditionally considered to
be part of the technology sector, such as food processors and
tool manufacturers.
One reason: Under the patent laws, a patent-holder can sue the
seller, maker or user of an infringing product, or any of
these. Until fairly recently, patent-holders often preferred to
file a single lawsuit against the maker of an accused product
rather than file a series of lawsuits against the customers,
who are the users of the product. But increasingly, some
patent-holders have adopted a “sue the customers”
strategy on the theory that the customers have less of a stake
in the product and are usually indemnified by the maker and as
a result are more likely to settle instead of undertaking
litigation.
The IP risks of asset loss and infringement litigation are not
yet as inevitable as death and taxes. IP risks can be managed
by planning. Smart managers know that they not only can but
must manage business risks or the business risks will end up
managing the business for them.
— Johnathan E.
Mansfield,
Schwabe, Williamson &
Wyatt
jmansfield@schwabe.com
