Aon Intellectual Property Assets Briefing - July 2021

Thoughts from the Aon Team

The USPTO recently reported in a blog post that trademark applications are up nearly 60% over the first six months of 2021. This surge in applications is evidence that new businesses and new product offerings are up, likely confirming a resurging economy. It is also another example of the increased importance of intangible assets to today’s businesses. Intellectual property continues to be one of the most valuable assets that a company holds.

As these assets become more valuable, they also become subject to more risk. Those of you who were with us in January, when we first mentioned third-party risk, might recall that it is one of the most likely sources of IP infringement risk.* As innovation supply chains become increasingly complex, third-party relationships can present numerous risks, including the possibility that their products unwittingly infringe of a third-party’s IP. One well-known example is Wells Fargo’s loss of a $200 million patent case, due to relying on 3rd party software that was found to be infringing.

Third party risks aren’t just limited to IP. Two of the all-time worst Cyber incidents – the SolarWinds hack and NotPetya malware were related to third party code. Whether it’s IP infringement, cyber attack, or even an E&O issue, the end results are frequently similar – business interruption, reputational harm and direct financial liability.

These are all insurable risks and are usually managed by requiring broad indemnification provisions in contracts. However, the process for managing vendor and other third party compliance is often manual and ad hoc. It’s particularly cumbersome and time consuming for larger organizations with complex supply chains.

Fortunately, there are solutions to help organizations with third-party risks. Our Vendor Risk Management (VRM) SaaS solution was originally developed to help manage third-party IP risk, but can help with all types of insurable third-party risk. To learn more, you can check out this video of a panel we did with a group of leading financial institutions or simply send us an email.

And, for those of you who are podcast listeners, be sure to listen to this week’s episode of On Aon. I had a great time chatting with Sheena Singh about all sorts of IP-related topics, from its critical importance to a company’s value to how we’re working to address diversity and inclusion in inventorship.

Best,

Lewis Lee

CEO, Aon’s IP Solutions

^{*You can find all of our archived briefings and other thought leadership here}

Aon in the News

A report from Aon highlighted the growing trend of intellectual property as an asset for many organizations over the past 30 years. A rise in defaults and bankruptcies has made raising capital more difficult for many banks and investors, prompting them to explore new fundraising sources such as the use of IP assets as collateral in borrowing.
EU antitrust regulators approved Aon's bid for Willis Towers Watson with conditions, demonstrating continued progress with regulatory clearances. Aon CEO Greg Case emphasized that the company's proposed combination with Willis Towers Watson would allow Aon to better address client needs and spur innovation within the industry.
Aon is predicting moderation in rate increases as re/insurers shift their focus to growth instead of portfolio remediation. Aon’s new report forecasts that other long-term issues will likely gain relevance in rating models as the world emerges from the pandemic.

^{"China is flooding the U.S. with trademark applications and no one is sure why" - Fortune / Source: Gerben Parrott, United States Patent and Trademark Office}

Executive Insights

Trademark filings in the U.S. Patent and Trademark Office rose by more than 60% in the first half of 2021, creating a backlog of 900,000 trademark applications and delaying even routine office operations. USPTO trademark commissioner David Gooder pledged to increase productivity to tackle the surge in applications, which experts say underscores an “explosion of growth” in the e-commerce sector. The backlog can also be attributed to significant “clutter” from Chinese applicants, many of which are still encouraged to file bad faith applications to cover trademarks that are actually owned by unrelated third parties.
Several U.S. senators introduced legislation that would make it easier for businesses to halt imports made with their trade secrets if they believe their intellectual property was stolen. The bill would create a new committee in the U.S. International Trade Commission that would investigate allegations of trade theft waged by a competitor that has the backing of a foreign government. Authorities would have 30 days to decide whether to halt imports while a longer review unfolds.
The Supreme Court ruled that the more than 200 administrative judges who hear patent disputes on the Patent Trial and Appeal Board were appointed in violation of the Constitution and proposed that the PTAB director be given greater authority to review the judges’ decisions. The new director has not yet been nominated or appointed, although challenges to questionable patents will largely proceed as before.
Home security giant ADT filed a patent-infringement complaint against its rival Vivint, escalating an intellectual property battle between the two companies that began with a similar lawsuit filed by Vivint four months ago. ADT claims Vivint’s home security monitoring and automation control panels infringe two of its patents that facilitate smart home integration.
- Ring will stop selling the current design of its Outdoor Siren and release a new version after ADT filed a complaint that the siren design bore a “striking similarity” to its blue octagon signs.
A Philadelphia news anchor is suing web platforms including Facebook and Reddit for hosting ads that feature an unauthorized image of her, bringing up new questions about likeness rights. The local news star claims that being famous is an asset and that her face is a form of intellectual property, winning her the support of the media artist protection union SAG-AFTRA in her legal fight.
- WWE Hall of Famer Booker T. lost his case against gaming company Activision after he claimed that a character in the company’s Call Of Duty: Black Ops game bore a striking resemblance to him. Activision countered that the similarities between the game character and Booker T. amounted to “little more than the standard genre tropes.”

News of Interest

73% of Trade Secret Suits Now Contain Federal Claims; 74% of Merit Judgements Result in Injunctions - IP CloseUp - 6/29/2021
- Outbound Virality: Facebook: 0 Interactions; Twitter: 1 Tweet
- “It’s no surprise that many plaintiffs favor the federal option, with nationwide service of process and harmonized rules,” says James Pooley , a leading trademark attorney, author and ex-Deputy Director General of WIPO. “Many still choose state court for essentially local cases, where it is generally easier to get your case to trial.
The current trade secret conundrum: the cart before the horse - Reuters - 7/6/2021
- Outbound Virality: Facebook: 0 Interactions; Twitter: 0 Tweets
- Top threats to trade secrets were ranked by senior corporate executives: weaknesses in cybersecurity (49%); employee leaks (48%) competitive intelligence (27%); third-party service provider risks (26%); corporate espionage (24%).
The WTO's survival hinges on the COVID-19 vaccine patent debate, waiver advocates warn - Fortune - 6/18/2021
- Outbound Virality: Facebook: 5 Interactions; Twitter: 40 Tweets
- Former U.S. President Donald Trump threw a wrench into its core function of resolving trade disputes—a blocker that President Joe Biden has not yet removed—and there is widespread dissatisfaction over the fairness of the global trade rulebook. The 164-country organization, under the fresh leadership of Nigeria's Ngozi Okonjo-Iweala, has a lot to fix.
Ancestry.com wins dismissal of yearbook database suit - Reuters - 6/16/2021
- Outbound Virality: Facebook: 0 Interactions; Twitter: 3 Tweets
- An amended complaint by a proposed class of California residents didn't sway U.S. Magistrate Judge Laurel Beeler in San Francisco from her analysis in a March decision that the plaintiffs lack standing and that the genealogy giant is immune from liability under Section 230 of the Communications Decency Act, Beeler said in a Tuesday order.

Social Contribution

Brad Heath @bradheath 6 Jul The DOJ Inspector General says that in 2014, three FBI officials "participated in the $2 million purchase of intellectual property related to a classified undercover operation without the authority to do so." https://t.co/4DxpSwmGkl Retweets: 54 Likes: 98
USPTO @uspto 25 Jun To help researchers, policymakers, and the public explore the impacts of #ArtificialIntelligence on invention, we have released a new dataset identifying which of the 13.2 million USPTO patents and pre-grant publications include AI. Learn more: https://t.co/B8up59vbI3 https://t.co/aBYXxURvfW Retweets: 11 Likes: 17
Rep. Mariannette Miller-Meeks, M.D. @RepMMM 2 Jul ICYMI: I co-authored an op-ed in @WashTimes with @SteveScalise on the importance of protecting our #COVID19 vaccine IP. Earlier this month, I partnered with @RepFischbach to introduce legislation to protect our valuable IP. #IA02 READ MORE HERE ⬇️⬇️⬇️ https://t.co/7xg5S7J5Dg Retweets: 6 Likes: 10
Priti Krishtel @pritikrishtel 2 Jul “The challenges associated with psychedelics and intellectual property are of particular importance because they could shape the entire ecosystem and related industries for decades to come," - @tferriss https://t.co/HjzDiFDPri Retweets: 10 Likes: 43

^{Aon’s Intellectual Property Solutions team helps clients identify, protect, and maximize value from their most valuable assets in today’s business world, their intellectual property. Aon brings the best minds and strong analytical tools to provide a comprehensive approach to intellectual property strategy, valuation and risk management across a client’s business -- aligning current and future intellectual property assets with a businesses’ overarching strategy.}

^{For more information about Aon’s Intellectual Property Solutions, please contact intellectualproperty@aon.com.}