FCPA: IP Rights under the FCPA

For many US companies conducting business internationally, Intellectual Property (IP) is a key business component. Not only is the development of new IP critical to many businesses, for continued growth strategies, but IP protection is now a central business interest. This significance was recognized as far back as 2002 by the US Congress in the passage of the Sarbanes-Oxley Act (SOX), which required, among other things, that companies must incorporate systematic programs for protecting and monitoring IP assets as a part of an overall SOX compliance program.

IP in relation to anti-bribery and anti-corruption programs under the Foreign Corrupt Practices Act (FCPA) were recently explored in an article by authors Doug Sawyer and T. Markus Funk, in an article entitled “The IP Practitioner’s ‘Cheat Sheet’ to the FCPA and Travel Act: Introducing the IP FCPA Decision Tree” published in the BNA Bloomberg Patent, Trademark & Copyright Journal (January 27, 2012). The thesis, as presented by the authors, is that with so many companies going global, IP is routinely and simultaneously “owned and litigated in multiple jurisdictions.” As such it poses significant risk for anti-bribery and anti-corruption program scrutiny as “the tactics used to register, challenge or enforce those IP rights in foreign jurisdictions must be carefully viewed” under the FCPA.

IP Anti-Corruption Red Flags IP rights by their nature are created by a government. Within this context, the authors note that there are several IP Red Flags which should be noted and followed up on if they appear. IP Red Flags include some of the following: a patent being allowed unusually quickly; an opposition to a trademark being granted before the entire process has been completed; and a foreign customs official robustly enforcing company A’s anti-counterfeiting agenda, while ignoring company B’s agenda ...

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