Although Sarbanes-Oxley does not specifically address intellectual property, there is growing recognition in the legal and accounting community that SOX imposes heightened obligations on CEOs and CFOs regarding intellectual property.  Consider these statements about these new corporate responsibilities and attendant risks:

"Included in the corporate accounting mandates under the Sarbanes-Oxley Act of 2002 is the requirement to report several aspects of the company's intellectual property portfolio.  Failure to comply with Sarbanes-Oxley requirements leaves companies facing potential lawsuits."[1] 

As a result of SOX, "Companies must measure, monitor and disclose the relationship between intellectual property rights and a company's financial performance, and translate changes in the scope and strength of those rights into reportable indicators of financial performance.”[2]

"Clearly, CEO's and CFOs are on the hook. . . . They must understand a variety of processes and systems, one of which is IP and intangible asset management.  They must understand the significance of those assets in the content of business conditions and the competitive landscape.  I'm not sure a lot of CEO's understand their gatekeeper role with regard to IP."[3] 

"For CEOs and CFOs, [the obligations of SOX require] an active awareness of the scope and value of a company's IP portfolio."[4] 

"Shareholders and managers, particularly in the light of Sarbanes-Oxley compliance, require more transparent financial information concerning the impact of IP assets on a corporation's value."[5] 

"Sarbanes-Oxley has changed the rules of the game.  It is now clear that the directors and top managers must become actively involved with intellectual property management and information security, to avoid both civil and criminal liability under Sarbanes-Oxley and shareholder derivative suits for the breach of fiduciary duty to adequately protect intellectual property assets."[6]

One may question whether these views present undisputed fact, wishful thinking or self-fulfilling prophecy.  The mandatory language of must and required may seem too strong in the absence of specific statutory language, regulations or case law imposing the obligation.  What seems apparent at the very least, however, is a clear consensus among commentators that Sarbanes-Oxley should encompass intellectual property assets.  That consensus no doubt creates an expectation of best practices involving intellectual property, with the consequence that corporations which neglect intellectual property in their compliance programs may be at substantial risk from shareholder and regulator challenges.