The Gatherer - Volume 9

It seems that no matter what industry a business is in, the potential for making the same intellectual property mistakes are the same. Why is protecting IP so important? Research shows that in some cases up to 75% of the value of an organisation may be represented by its IP rights or intangible assets. If managed poorly, however, IP assets or related IP issues can cost businesses thousands, even millions of dollars in terms of unrealised opportunities or damage caused to the business or brand. INTO THE LIMELIGHT from The Green Room

INDUSTRY INSIDER

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COMMERCIAL AGREEMENTS AND COVID-19: FORCE MAJEURE

The recent emergence of COVID-19 may amount to a force majeure event. What does this mean to commercial agreement and performance pursuant to those agreements? In some circumstances, the COVID-19 could excuse performance under a contract. The question is when and what is required to suspend rights of performance under a contract.

The recent emergence of COVID-19 may amount to a force majeure event. However, there are no “hard and fast” rules, and contracts will need to be assessed on a case-by- case basis. “Force majeure” is not a standalone legal concept, so if a contract does not include a force majeure clause, there is no general right to excuse non-performance caused by an unforeseen event. A “force majeure” clause usually excuses the parties from contractual obligations and liabilities where their failure to perform is caused by unforeseen events (either natural or human) beyond their control. A “force majeure event” may be defined broadly to include any event beyond the parties’ reasonable control or it may be defined by reference to specific events (common examples include fire, flood, other natural disasters, strikes, government action, and war). As force majeure clauses are the result of a commercial agreement between the parties, the events that will trigger the clause, and the effect of the clause (eg. suspension of performance or a right to terminate), are determined on

a case-by-case basis, taking into account the wording of the clause and the relevant facts. To determine whether the COVID-19 pandemic will amount to a force majeure event and excuse performance under a contract, the first thing you will need to consider is whether a particular contract includes a force majeure clause, and if it does: (a) whether the COVID-19 pandemic falls within the scope of the clause; and (b) if so, what the consequences are (suspension of performance or a right to terminate the contract).

Albert Ferraloro Brendan Peachey “

How can patent searching save money?

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You can use patent searches to identify industry and competitor landscape intelligence. For example, you can review a competitors’ entire patent portfolio to see what their recent inventions are and get a feel for their areas of research. This can be done before their products even enter the market.

JUDITH MILLER Principal

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Where our experts share answers to your most popular IP questions. Coming soon to wrays.com.au Welcome to THE GREEN ROOM

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