CHICAGO – Intangible risk management is an ever-changing and increasingly difficult task, but additional tools are currently available to help risk managers in their efforts to protect patents, copyrights and business secrets, experts say.
With nearly 85% of S & P 500's assets in intangible assets, companies are looking for more innovative ways to protect their intellectual property rights, says Nick Chmielewski, IP Solutions chief executive at Aon PLC in Chicago.
"The value is really in intangible assets today" Mr Chmielewski said during a panel discussion at the 2019 Annual Hines Symposium on Wednesday afternoon in Chicago.
Companies have several ways to protect their patents, brands and business secrets, says Grant Drutchas, managing partner of McDonnell Boehnen Hulbert & Berghoff in Chicago, including the use of civil litigation to enforce patents, the International Trade Commission to design a domestic industry from Imports that may be free
Insurance is also increasingly available to cover intangible risks.
Although business secrets and patent insurance were often included in errors and omissions policies in the early 2000s, Mr. Chmielewski, an "exodus" took place because of the losses experienced by the insurers. Now, with more information available to make an informed decision, he said the insurance companies are investing heavily in the intellectual property market, and he said he could "safely" give as much as $ 300 million in patent protection under the right circumstances.
The market is definitely developing, says Chmielewski. "In the commercial secret area, when you talk about the value of business secrets it is $ 6 trillion, there is also a lot of innovation in that area, both from the first and third parties."
Liz Walker, executive director and global insurance for Groupon Inc. in Chicago, said that the increasing number of high-profile technology-related trials has "definitely pushed risk management tank processes toward" how can I insure this. "" [1
To mitigate the risk, Mrs Walker said that the company has built up "robust remuneration provisions to the extent we can" and focuses on vetting suppliers before entering into a contractual relationship to ensure that the technology they use has the rights.
In court, direct competitors who can show that they are commercially affected by an infringement can recover their lost profits, says Mr. Drutchas.
"The lost profits may be in some situations greater than your gross income," he said. "If you are not directly competitors or cannot show direct financial loss through the infringement," the plaintiff may be entitled to reasonable royalties. And that number can vary widely because it is often determined by a jury, he says.
In some jurisdictions, a company may also be interested in selling its product, says Michael Friedman, CEO of Hilco IP Merchant Bank in Chicago.  Gavin Souter, editor of business insurance moderated the panel.