Canadian Lawyer InHouse

October/November 2020

Legal news and trends for Canadian in-house counsel and c-suite executives

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4 NEWS ROUNDUP PATENTS NEWS BRIEFS In-house counsel prepare for patent litigation Economic downturn will lead to rise in patent trolls, warns lawyer The pandemic-induced economic downturn is likely to lead to a rise in activity from patent trolls as many distressed companies begin selling patents to save on operating costs, according to Ken Seddon, lawyer and CEO at non-profit community LOT Network. As a global community of more than 750 organizations in 36 countries, ranging from small start-ups to global power brands including Amazon, IBM and Microsoft, LOT Network offers immunity from Patent Assertion Entities — also known as patent trolls — which are companies that acquire patents solely for the purpose of filing lawsuits against other companies. When a member of LOT Network sells or transfers a patent to a patent troll, other members are automatically granted immunity from all future lawsuits involving that patent. "The goal here is to get every company to join LOT because then we can eliminate the patent troll problem by effectively making sure these patents are immunized and the community is immunized," says Seddon. "People are starting to worry that we will see another spike in the amount of litigation from patent trolls. General counsel should care about reducing their risk and reducing their litigation exposure, and this is something proactive you can do," he says. TD Bank Group joined LOT in 2016, which was an easy decision due to the low cost and the opportunity to participate in the larger movement to restrict the flow of assets that are going to trolls, according to Josh Death, associate vice president, legal, intellectual property and patentable innovation at TD Bank Group. The annual subscription fee of US$20,000 is minimal for large companies such as TD, while companies with less than US$25 million annual revenue are invited to join free of charge. "Joining LOT was a good corporate citizen act and the upside is enormous," says Death. "In our view, LOT already had critical mass among tech companies and that is where a lot of the assets being asserted against us had come from. It's naïve to think you can never potentially see a patent from a Google or an IBM ultimately being asserted against you from a third party." Death notes that litigation arising from patent trolls has been ticking upwards in the past 18 months, so taking positive action is critical. "As long as there are patents, there will be patent trolls. They are quite an established little industry, which has a significant degree of success and they leverage the litigation system against you," he says. "It's naïve to think you can never potentially see a patent from a Google or an IBM ultimately being asserted against you from a third party." Josh Death, TD Bank Group CLOs play key role in cybersecurity strategy: survey More than 70 per cent of chief legal officers play a key role in cybersecurity strategies for their organizations, while 21 per cent are tasked with handling data breaches, according to a global report from the Association of Corporate Counsel Foundation. Eighteen per cent of organizations have an in-house lawyer dedicated to cybersecurity, the biannual report found — which is up from 12 per cent in 2018. In most cases, this lawyer is responsible for cyber across the enterprise and is in an executive level position in 56 per cent of cases. New facility helps businesses with ESG A resource to help businesses focus on corporate social responsibility and environmental, social and governance efforts has been launched by public strategy and communications firm Navigator Ltd. The Canadian Centre for the Purpose of the Corporation aims to help equip in-house counsel and other business leaders with insights, tools and support as they work to redefine and strengthen the contributions their organizations make to society. General counsel and other C-suite executives are invited to seek guidance in auditing their performance on key metrics based on shared value, ESG and stakeholder capitalism. Scholarships awarded by Legal Leaders for Diversity Nine law students across Canada were awarded scholarships by the Legal Leaders for Diversity Trust

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