CD: In recent years, have you seen a rise in certain types of disputes involving intellectual property (IP)? What are some of the common sources of these conflicts?

Engelmann: There has been a considerable rise in intellectual property disputes over the last couple of years, which is associated with the ongoing financial crisis and the growing interest or need of the owners of IP rights to maximise their benefits. The ongoing importance of the internet and recent technological developments such as the ‘Cloud’ may also be seen as a reason for the rise of IP disputes. In particular, one can observe a rise of disputes relating to breaches of licensing agreements or the misuse of patents, copyrights and trademarks. However, intellectual property disputes focus on a wide range of matters involving but not limited to patent misuse, predatory pricing, tying, attempted monopolisation, barriers to entry and unfair competition.

Daniel: One of the areas that has seen increased activity involving IP disputes is bankruptcy or restructuring. In instances where IP assets comprise a significant portion of the bankruptcy estate, the valuation of these assets is often contentious. It is necessary for the company and its attorneys to have a thorough understanding about the scope and value of the company’s IP, which in turn may provide significant negotiating advantage when deciding whether to retain assets or sell them to creditors, lenders, or other parties.

Oct-Dec 2013 issue

Charles River Associates

PricewaterhouseCoopers AG

Skadden, Arps, Slate, Meagher & Flom LLP