Intellectual Property Issues for Asset Managers

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1 Intellectual Property Group January 2010 Intellectual Property Issues for Asset Managers In today s economy, an effective intellectual property (IP) strategy is increasingly important to success. Companies that succeed do so because they do something different and better than their competitors. A comprehensive, offensive IP strategy is the best way to protect the difference that makes a difference for successful companies. Investment and asset management companies should consider implementing a strategy for protecting their name in the marketplace and their own innovations, as well as seeking ways to manage the risk in their business. To assist management companies in making important decisions concerning their IP, we have outlined below a number of key considerations. 1. Trademarks Rights in a Company or Fund Name Financial companies often mistakenly conclude that once the Office of a Secretary of State and, where applicable, your regulator(s) approve your adoption of a new company or a new fund name, that is all that is needed before beginning use of that name. This is not so. It is equally important to determine whether the chosen name might infringe one or more names already in use or previously registered or filed for in the U.S. Patent and Trademark Office. Making this conflict determination involves commissioning a trademark search subject to an attorney s review. Prior to investing time and equity in a name, it is far better to know whether its use will expose your company to the risk of an injunction or even possibly liability for damages. Rights in a name are created based on using that name in commerce in connection with an existing business. In addition to use, a firm may also reserve rights in a name by filing to register it in the U.S. Patent and Trademark Office based on a bona fide intent to use a trademark or service mark in commerce. The act of incorporation alone will not establish priority of use vis-à-vis others. Nor would using the name in a prospectus for the sale of stock or in financial statements likely establish rights. We recommend that financial firms seek registration in the United States for names used in connection with the activities of their investment management firms and funds both to help defend against potential challenges and to assert rights against infringing newcomers. We also recommend obtaining registrations in countries outside the United States where your firm does significant business or is likely to do business in the future. The reason is that trademark ownership in most jurisdictions is based on who registers first in that country. Therefore, even if your firm has done business in a certain jurisdiction, e.g., having investments or investors in that country, another firm s subsequent filing and registration can trump your prior use rights there. Another important consideration is who should own a name. Consolidation under single ownership is advisable; if ownership rests with multiple entities, a name loses its trademark significance because it becomes diluted. As between the fund and the investment adviser, the adviser should likely own the name as it needs to

2 2 maintain control, including the ability to open new funds under the name. 2. Domain Names Domain names are registered on a first-come, first-served basis on an Internet registrar without regard to trademark law principles. When considering what domain name may be used goes hand in hand with an analysis of what trademarks may be used, unless the domain name is comprised of one or more generic words such as that have no trademark significance. 3. Trade Secrets Any confidential information not known to the public or others in the industry that gives a business an economic or competitive advantage may be treated as a trade secret. Examples of potential trade secrets in the non-manufacturing, service sectors include: business processes and plans, financial information, customer lists and surveys and computer programs. To qualify as a trade secret, the owner of a trade secret must take active measures to maintain its secrecy. Failure to do so will cause the information to lose its status as a legally protectable trade secret. A. Are you taking steps to avoid conflict with the trade secret rights of others? Properly protected trade secrets can be of enormous value, particularly to a business that emphasizes unique or proprietary products or services. Conversely, misappropriation of another s trade secret can create significant exposure. Employees should be reminded of their obligations to respect the IP of those outside the company. An employee s violation of another s trade secret can create liability and embarrassment for your enterprise. Also, IP ownership and trade secret disputes can arise as companies become aware of the importance of IP and attempt to establish procedures to secure rights. Employees who were not obligated to transfer ownership of innovation in the past may view their innovation as their property to take with them from job to job. Disputes can also arise when enterprises accept unsolicited disclosures without establishing IP ground rules in advance. Once an enterprise obtains a disclosure of innovation from someone outside the organization be it a contractor or independent inventor the enterprise is at risk in that its future innovations will be considered derived or copied from the outside submission. B. Are your employment and termination procedures designed to prevent IP disputes? The most effective strategy for avoiding IP ownership and trade secret disputes is a comprehensive and holistic approach that begins at the start of an employment/ engagement, continues throughout the employment relationship and extends through the exit interview. Most problems arise when there is an attempt to change rules and understandings along the way. Thus, an enterprise should strive for effective communication and a meeting of the minds where possible at every step, beginning with the employment contract and interviewing stage. You should ascertain and document what, if any, prior innovation rights an employee claims to have to avoid ownership disputes. New employees should understand and acknowledge their obligation to transfer ownership of innovation that occurs during the period of employment. An employer should also ascertain whether a new employee is subject to non-disclosure obligations from past work and emphasize the ethical and legal obligation to preserve confidences. The employee should be reminded of these obligations periodically. Upon resignation or termination, employees should be reminded of their obligation and offered specific guidance as to areas that are believed to be sensitive or subject to misunderstanding.

3 3 C. Do your vendor contracts address IP ownership? Companies must understand their IP ownership rights in collaborative development activities involving potential innovation. When a vendor is called in to implement an idea that originated internally, the patent rights would be presumptively owned by the individual conceiving of the idea (often an individual in the company), but the copyright on a final implementation might be presumptively owned by the vendor who created the expression of the idea. Ownership must therefore be resolved at the outset of an engagement. 4. Patents A. Are you using patents to protect innovation? Are your competitors? Patents are legitimate tools for creating barriers to entry against competitors in the hyper-competitive network economy. In some instances, patents may be the only practical way for smaller companies to protect their innovations from much larger competitors. Conversely, patents can present obvious challenges when asserted against you. Your direct competitors can use patents to gain a competitive advantage by preventing your company from adopting more efficient systems and methods in its core business. Indirect competitors will attempt to use patents to prevent companies from expanding into new areas, especially in the area of electronic commerce. An IP audit that would include a review of the competitive patent landscape a company faces can identify both risks and opportunities. B. Are your employees obligated to assign their inventions? Companies should review their standard employment agreements to make sure that all employees are contractually obligated to assign inventions they created within the scope of their employment. Companies are frequently surprised to find that they do not own their employees inventions because the work made for hire doctrine under copyright law does not apply to patents. C. Are you aware of third-party patents that might impact your business? Understanding the patent context that might impact your business is essential to both an offensive and defensive IP strategy. You need to know whether direct competitors, IT vendors or others have obtained or are seeking patents that might prevent your company from adopting more efficient systems and methods in its core business or precluding expansion into new areas. When potential threats are identified, you may need guidance from counsel regarding non-infringement and/or invalidity of these patents. D. Are you shifting infringement risk to the maximum extent possible? A patent owner can choose to pursue anyone making, using, selling or even offering to sell a patented invention as a target in an infringement action. To minimize the risk of patent infringement associated with new technology, you should insist upon indemnification clauses in vendor purchase contracts, especially in the context of IT purchases. Another way to shift the risk of patent infringement to others is by outsourcing key e-commerce activities so that someone else bears the risk. Large IT vendors and application service providers are less inviting targets for patent extortionists and are typically in a better position to defend against allegations of patent infringement. 5. Web Sites If your Web site (and any computer software or written materials) was developed by a third party, your agreement with that party should assign ownership of the Web site content to you. Your Web site should have an appropriate user agreement and certain terms and

4 4 conditions of use as well as disclaimers. You also need to have appropriate licenses, approvals or consents in order to use all third-party owned data and content that is included on your Web site. Once you decide on your company/fund names, securing domain name ownership is also key. 6. Privacy An issue closely related to IP and IT asset control matters is data privacy and protection. In the United States, under the Gramm-Leach-Bliley Act, if your firm collects non-public personal information in connection with your business, it must securely store personal financial information in accordance with an appropriate privacy policy. Also, your firm must advise consumers of its policies on the sharing of personal financial information. Finally, your firm must provide consumers the choice to opt out of sharing personal financial information. If your business involves the use of personal information within the European Union, you should ensure that you are processing such data in accordance with applicable European Union law and regulations. In particular, your firm may consider enrolling in the United States Safe Harbor scheme (allowing U.S. entities to self-certify compliance with EU standards of data protection) or adopting other compliance measures to render any use of personal data lawful. Conclusion Implementing an effective IP protection and risk management strategy requires awareness of the available legal tools as well as an understanding of how those tools might be used in one s business in the United States and abroad. Strategic IP asset management begins with industry experience and expertise in all aspects of IP law. Breadth of experience allows advisers to identify issues and call upon the appropriate resources to help clients manage their intellectual assets. Advisers that lack access to a complete set of tools tend to de-emphasize (or fail to recognize the need for) those tools that they cannot provide. The attorneys in Shearman & Sterling s intellectual property group work with financial institutions to respond to these challenges. We represent leading financial services organizations on a wide variety of trade secret, patent strategy, trademark, domain name and copyright issues and regularly assist in IP due diligence in connection with potential and actual acquisitions. We also defend top financial institutions in high stakes patent cases involving a wide range of technology and financial products. We suggest an integrated approach to protecting IP an approach that takes into account: Trademarks Domain Names Trade Secrets Employment and Vendor Agreements IT Asset Control Policies Patents Web Sites Privacy We would welcome an opportunity to help you develop a comprehensive IP strategy. This memorandum is intended only as a general discussion of these issues. It should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired.

5 5 If you wish to receive more information on the topics covered in this memorandum, you may contact your regular Shearman & Sterling contact person or any of the following: Samuel A. Waxman New York (+1 212) Michael Bednarek Washington, D.C. (+1 202) Susan Reiss New York (+1 212) LEXINGTON AVENUE NEW YORK NY Shearman & Sterling LLP. As used herein, Shearman & Sterling refers to Shearman & Sterling LLP, a limited liability partnership organized under the laws of the State of Delaware.

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