IP Spotlight - December 2025

As granted patents, registered designs and trade marks are often found to be invalid, you need to invest the time and money in preparing/obtaining good quality IP rights. Applications need to be drafted by a professional that you trust. It is an unfortunate reality that patents for great inventions are frequently invalidated, or too easy to work around, due to technical problems with the way the patent is drafted. If an IP asset is worth registering, it is worth preparing the materials required to obtain those rights with care and precision. When acquiring IP rights from a third party – for example, where merging with a business with an extensive IP portfolio, or partnering with another Third, if there really is no way around an IP right, you can always approach the rights holder to ask for an assignment or licence. The owner may well have little interest in those rights anymore and gladly allow you to use them. It is always preferable to make an approach before you start your commercial activities, as having the ability to just “walk away” from the deal will allow you to drive a harder bargain than if you are facing potential infringement proceedings. It is also useful to come to negotiations forearmed with possible invalidity arguments as these can often be used as leverage to secure a licence at a lower cost. ASSUMING ALL IP RIGHTS ARE VALID (AND CREATED EQUAL) 6 having to defend infringement proceedings. Successfully defending infringement proceedings is seldom preferable to avoiding litigation in the first place. Reaching the best solution often involves a creative collaboration between technical and legal staff. Second, finding relevant IP rights is not necessarily a roadblock for your project. Registered IP rights are often broader than is allowable. If you find IP rights cover a product or service which is important for your business, invest the time to assess the validity of those rights. You may find that you can challenge and limit, or even invalidate, those rights, thereby clearing your way.

organisation to take advantage of their IP, it is crucial to do due diligence around the validity and scope of those patent rights. If you fail to do so, you may well find that you have paid a lot of money for rights that are effectively worthless.

FAILING TO PROTECT CONFIDENTIAL

INFORMATION 7

While confidentiality agreements are important, in practice they are difficult to enforce against former employees. It can be difficult to prove that an employee used or disclosed specific information, and that they derived the information from your business. It is also difficult to prove that information is confidential. It is not enough to baldly assert that the business considers the information confidential. Unless the information is explicitly cited in a confidentiality agreement, you will need to satisfy a court both that the information has the necessary quality of confidentiality and that the employee knew that it was confidential. RESTRICT ACCESS TO SENSITIVE DATA; ENCRYPT FILES AND USE READ-ONLY PERMISSIONS Rather than suing a former employee to try to plug a confidentiality leak, it is better to stop leaks happening in the first place. There are many ways to stop employees leaving the business you’re your confidential information. Limit their access to confidential information and encrypt sensitive information so only authorised employees can view it. Where an employee requires access, consider restricting the access to only a portion of the information, so they don’t see the complete picture. Evidence that your business has adopted such measures to protect confidential information will also assist in persuading a court that the information is in fact, valuable and confidential, and that your (ex) employees were aware of this. CUT OFF ACCESS IMMEDIATELY WHEN EMPLOYEES RESIGN It is of course impossible to stop people leaving the business with information retained in their head. But the information retained may be considerably less extensive than what they can download and take with them on a hard drive. Where possible, only allow employees to read,

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