Intellectual property may now be your business most valuable asset

Intellectual property increasingly forms the backbone of your business and it’s most valuable asset.

Understanding the value, legalities and best way to commercially take advantage of and protect intellectual property can be difficult and confusing, especially for start up or early stage businesses.

Intellectual property can be protected and exploited in many ways.

Identify and protecting your intellectual property –IP audits are highly successful in identifying assets, potential risks and clarifying ownership. IP assets do not just include inventions or trademarks but include critical databases, website IP, social media accounts, brand protection and know how. IP legal advice includes maximising the business potential of your assets (perhaps including tax advice and the right structure to ringfence those assets) and the actions required to either prevent or stop infringement. For many businesses, it is important to set immediate, medium term and long term priorities and to plan and establish budgets, including legal spend. Audits identify the most important issues and those that can wait if necessary.

Once assets have been identified, it’s worth taking advice on the possibilities for commercial exploitation, such as licence or distribution agreements, joint venture or negotiating with affiliates or joint venture contracts. It is important to take steps to protect assets both from internal and external threats. Unfortunately, it is all too common for information and assets to be at risk from internal sources just as much as from competitors. Protections should be built into employment agreements, consultancy agreements, commercial documentation and even shareholders agreements.

Administrative issues – businesses are frequently too busy to deal with the administrative tasks involved in protection of intellectual property which creates vulnerability. Keeping a register of your assets and monitoring for possible breach, such as counterfeit checks on Ebay and other websites as one example, are also important. If you are considering talks with outsiders on confidential matters relating to your business a non-disclosure agreement can protect your position before the information is disclosed

Stopping intellectual property infringement – In many cases, quick and decisive action is vital, especially with confidential information such as a database, software, invention or design. Irreparable damage can be caused within days in these situations without decisive action being taken and this can include international legal intervention bearing in mind that information often gets dissipated rapidly. In these situations, it is imperative to collect evidence quickly and where necessary use injunction applications to minimise damage and prevent ongoing loss.

Not all use of intellectual property without your permission will amount to infringement. However, it is important to know when it is. For example, intellectual property can be licensed for use by another.

Useful IP resources

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How should finances be dealt with in a divorce ?

Divorce proceedings can be a particularly difficult time for all parties concerned. Divorce finances is an area that often causes much debate . In the majority of divorce cases the parties will have a number of assets, such as properties, bank accounts, shares, jewellery and other investments and financial policies. The assets are likely to be a mixture of those owned jointly between the parties and those owned separately by them as individuals. Other assets include pensions which have the intention of providing benefit at retirement. Courts have broad ranging power with regard to reallocation of the assets and use these powers in an attempt to ensure that the assets are divided fairly and justly, regardless of who actually owns the asset.

Ancillary Relief

In most divorce cases, the parties attempt to agree how the assets are to be divided amicably and without the need for further court decisions or scrutiny. In such cases, the agreement may be confirmed by a court consent order which is a legally binding document that both parties must adhere to. This process and in all divorce or separation cases the parties should attempt to a similarly amicable situation. In certain cases, a separation agreement may be used instead, and this will also be legally binding. However, there are certain situations where the relationship between the parties will be strained and in such situations the court will need to look at the specific facts and come to a decision regarding application. In such cases, one of the involved parties will make an application for ancillary relief after which the courts will be required to use their powers to distribute the assets as they see suitable.

Matrimonial Causes Act (1973)

When having to decide how the assets are to be distributed, there are a number of factors that should be taken into consideration. These are listed in section 25 of the Matrimonial Causes Act (1973) and include the amount of time of the relationship, the ages of the concerned individuals, the assets, their incomes and their earning potential. The legislation also explains that in exercising its power the court will consider the living standards prior to the breakdown of the relationship, the contributions made by both parties and any disabilities of those involved.

Case law

It is important to note that the factors cannot be applied in a strict and mechanical manner as each divorce case will have a number of unique facts and therefore will not always be relevant to the particular legislation. This is a particularly contentious area of law with a lot at stake. Case law and decisions that have been made previously may provide help to the courts when it comes to dealing with certain circumstances. However, case law is only used to a certain extent and the particular facts at the time will dictate the findings of the court. The result of this is that it may prove difficult to get a definitive answer or guidance with regard to the division of the assets. However, the fact that the court has so much flexibility in its decision means that all facts can be considered and therefore in most cases the findings should be fair as they are based on the actual scenario and not incorrectly applied rigid legislation. However, this often needs to unpredictable results which would not previously have been considered.

Reform

There has been much debate regarding possible reform of the above provisions. In September 2012 a consultation that sought opinion on possible reform to section 25 of the above mentioned Act. The main area considered was what can be done to ensure that results were more consistent and an attempt to resolve what is a clearly subjective area with contradictory case law. Other areas that were discussed included clearer guidance with regard to certain types of assets and what matters should remain discretionary and therefore under the power of the court. Although there has not yet been any reform, this is a possibility in the future as many are of the opinion that there is not enough clarity and consistency when dealing with financial issues in divorce proceedings.

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