Another side effect of COVID-19: Loss of intellectual property rights

published in McAfee & Taft tIPsheet | April 8, 2020

Many are working remotely due to COVID-19, but this precaution could actually increase the risk that your company loses potential intellectual property rights. As professionals turn to LinkedIn, Facebook, Skype, Zoom and other popular tools to reach clients and prospects, businesses should keep in mind that these online platforms may lack some of the controls that are embodied in traditional in-person meetings. For example, unexpected participants may be in your Zoom meeting, or online presentations may be recorded without your knowledge. Although online platforms also make distribution of business materials much easier, that also increases the risk of adverse consequences.

For example, if details of an invention are posted online or shared without restriction, then potential patent rights associated with the invention may be lost. Likewise, any disclosure of a trade secret can result in loss of that trade secret if it somehow becomes known to the public. For trade secrets, once the cat is out of the bag, it can never be put back inside. Examples of trade secrets are: engineering data, customer lists, financial information, chemical compositions, recipes, and manufacturing processes. It is estimated that billions of dollars worth of such trade secrets are stolen electronically each year in the United States alone. Today, it is more imperative than ever to take steps to mitigate this loss.

What can businesses do? One strategy would be to remind your employees of the risks inherent to working remotely. Simple steps to account for these risks include creating internal policies dictating what topics are appropriate for online meetings, how presentations should be provided, how to determine and limit your online audience, and how to restrict the dissemination of sensitive information that may need to be discussed via online platforms. Another potential tool would be the use of non-disclosure agreements for sensitive conversations with third parties. These are customary with in-person discussions and should be used even if the platform of the conversation changes. Finally, require registration for your streaming presentations, and ask your audience to introduce themselves at the beginning of the meeting if practical. This introduction serves an important purpose — it helps identify who is in the room (including those off-screen).

If you are unsure about how to structure your policy or if a public disclosure has occurred and you want to know what options you have, please contact us.