Managing Intellectual Property in Times of Crisis
Times of crisis can test a business on many levels; and often, it is the planning done “pre-crisis” which can help insulate a business from dire outcomes. The COVID-19 pandemic continues to disrupt markets and challenge operations on a global scale, forcing many businesses to make changes to adapt over the coming months. Among the needs being addressed are maintaining revenue, supporting employees, meeting contractual obligations, providing safe working environments, addressing insurance coverage and compliance matters, and ensuring access to working capital. Although not as pressing, managing intellectual property is also a priority that may need to be addressed.
Any company with an IP portfolio should plan ahead for managing the portfolio through a crisis since failure to timely act can result in a loss of rights or diminished value. However, even those with an existing crisis management plan may need to retool their approach in light of global impact of the coronavirus pandemic. When revising or developing such a plan, we recommend addressing at least the following core components:
- Team first
Designate an employee, preferably a key member of the management team, to be responsible for all IP-related matters and include this responsibility within the scope of their function. This “IP lead” will handle all communications with the rest of the company’s personnel who are involved in IP matters, as well as with outside IP attorney(s) and other vendors. The IP person should understand the processes associated with obtaining IP rights (patents, trademarks, copyrights).
Ensure your IP lead has access to any information that will be needed to help make informed decisions. For example, typically, data about the status of the company’s assets, as well as any deadlines or associated costs related to them, are a good starting point. Although status and deadlines are generally easy to ascertain, associated costs often depend on the nature of the actions required. Discuss with your attorneys whether deadlines are extendable, whether actions are preferred, required, or optional, and whether there may be creative ways to minimize spending while maintaining rights.
Establish a budget for maintaining the IP portfolio, including quarterly and annual expenses. The budget can be prepared from the top down, designating an amount that the company reasonably can bear under the circumstances, and from the bottom up, based on the actions, costs, and timelines required to maintain the portfolio. The IP lead will be responsible for determining how to prioritize the expenses and should be prepared to recommend and implement hard decisions about the portfolio. Counsel can assist in identifying short term required actions and those actions that could be put off until a later time.
- Clear Objectives
Develop and communicate an IP strategy that supports the company’s short and long-term business objectives, working collaboratively with other members of senior management. A business may pivot frequently and quickly during a crisis in order to focus on products which drive sales; and such decisions can impact the company’s IP strategy. The IP lead will be responsible for maintaining good communication with all those involved with the IP portfolio.
Establish processes for maintaining good communication with company personnel and outside vendors, especially during times of crisis where work may be happening remotely. Besides ensuring that information is shared, and budgets, objectives, and decisions are communicated, having a communication plan in place will enable you to check-in with the team regularly to make sure that everyone is doing well.
Revising or implementing an IP strategy is a practical step that businesses can take now to help manage their IP assets in both the short and long-term. The attorneys at Patent GC regularly help clients make decisions about their portfolio, including prioritizing assets and making cuts for budget purposes. If you have questions about your IP or creating an IP management strategy, please contact Peter Gordon at firstname.lastname@example.org or (617) 756-0199, or to request more information, please visit our Contact Us page..