An idea, by definition, exists primarily in one’s mind, where it remains somewhat safe, but not very useful as long as no one else knows about it. To produce (business) value from that idea, it must be expressed, and therein often lie the starting points of many potential problems and challenges for the creators, the developers of that idea.
Fundamentally, the protection of the property rights of the products of the mind represents a kind of contract between the society, the government and the people who created/developed the idea.
But, the risks (threats, vulnerabilities) to ideas (information assets) today, for example, compromise, theft, misappropriation, infringement, forgery, etc., are asymmetrical, rapidly changing, and when they occur, can instantly :
. stifle the drive for further development and/or (economic)
idea marketing
. undermine projected transactions, investments, strategic (business) plans or
competitive positioning and
. erode (evaporate) the value of ideas and projected (future) use, profitability or
anticipated competitive advantages.
In the pre-Internet era, when companies experienced compromise/loss in their confidential proprietary information and/or trade secrets, etc., a common strategy/practice was to try to contain (compartmentalize) the damage and/or extent of loss , usually in a business continuity/contingency planning context. However, today, while such strategies may be feasible in limited circumstances, they rarely reflect the reality of the ‘nanosecond speed’ in which valuable information assets can be globally acquired and disseminated to an ever-growing variety of adversaries, eg infringers, competitors, counterfeiters, etc. And, once the asset has been successfully compromised, reliance on containment, in the conventional sense, is rarely a viable option.
Raising (exacerbating) the likelihood that a company’s proprietary know-how etc. will be compromised is the widespread availability of ultra-sophisticated and predatory data mining, scanning and analysis (competitor intelligence) tools (software programs). who can discern and extract substantial advantages embedded in a company’s information assets and ultimately distribute them to a growing maze of highly organized and skilled information brokers and corporate- and state-sponsored economic-competitive adversaries globally. This makes a company’s proprietary information assets at risk (vulnerable) 24/7, and at ever earlier stages of (their) development and regardless of protections. conventional intellectual property.
Thus, while conventional intellectual property enforcement mechanisms (i.e., patents, trademarks, copyrights) remain a highly nuanced and country-focused requirement to transfer ownership and provide a legal position to address potential disputes and challenges, the reality is that patents in particular are reactive, that is, they require constant self-monitoring and control by the owner/holder to be even reasonably effective.
Of equal importance, the alleged discovery effects of intellectual property (eg, the filing – the issuance of a patent, for example, will actually prevent others from stealing, infringing, counterfeiting and/or misappropriating) are ( a.) conceptually and virtually oversold, and (b.) easily/easily outmatched, circumvented and completely ignored by a growing global cadre of ‘legacy free’ players and well organized information brokers, infringers and counterfeiters.
Legacy free players, as characterized by Thomas Friedman (The World Is Flat) are individuals, organizations (globally) who generally have, for a variety of reasons, little or no cultural, national heritage to respect private property rights (tangible), let alone. Intellectual Property Rights. Thus, legacy free players can blatantly engage in theft, misappropriation and industrial (economic) espionage to acquire the ideas, intellectual property and proprietary knowledge of others to improve their position (economically, competitively) and without incurring the (tremendous) down payment. costs associated with ‘developing ideas’ (R&D).
Arguably, then, in the increasingly predatory, aggressive and winner-take-all global commercial (transactional) environment, conventional forms of intellectual property are rapidly becoming less relevant, perhaps even obsolete, as (a .) the primary “tool” for safeguarding a company’s most valuable assets, (b.) ensuring that the rightful owner receives the benefits of the economic and competitive advantage of the hard-earned and costly knowledge they have developed, or (c .) guarantee the control, use, ownership and value of its intangible assets. assets and intellectual property at stake – part of a transaction.
That is, in many transactions (where a company’s intellectual property and intangible assets are at stake, as part of a deal), one can now assume that all or a significant portion of the value of those assets and the life cycle of functional-commercial life will be significantly reduced. , if not completely lost (irrecoverable).
Unfortunately, the new business reality is that conventional IP enforcement produces little benefit for an organization, other than providing a (legal) position for dispute resolution and/or initiating litigation when challenges arise, which is often the case. and increasing consistency. That is not to say that conventional IP protections should not be used. However, any assumption that the issuance of a patent, alone, will be sufficient to absolutely deter (inhibit) infringement, product piracy, misappropriation or theft and allow the rightful owner/licensee to maintain control , use, value, and property rights for the 20 years, is not a credible, viable, or prudent course of action.
Therefore, today it is imperative that business decision makers (owners, owners of intellectual property and intangible assets, proprietary know-how, trade secrets, etc.) practice consistent and consistent administration, supervision and management. of those assets, including (a.) monitoring their condition, stability, fragility and sustainability, so that (b.) ownership: IP rights, where necessary, can be aggressively pursued in a timely manner (in time real).
Even in light of the economic fact, the business reality that more than 65% of the value, revenue streams and future wealth creation (sustainability) for most companies is directly linked to intangible assets and the intellectual property, a significant percentage of the company’s intangible assets. go unnoticed and undervalued. This is especially true when a company’s know-how (intellectual capital) has literally been embedded into its products, services and processes over many years, as a “corporate culture” that often goes unnoticed and underestimated to the extent that that contributes to quality, consistency and sustainability.
Ultimately, the probability (chance) that a company will experience a compromise, breach or loss of its IP, intangibles and/or proprietary competitive advantages and know-how should not be characterized as merely representing another ‘risk of doing business’. . Rather, in today’s global business environment, it more closely resembles an inevitability that, if dismissed or left unchecked by corporate decision makers, senior executives, boards and D&Os, can constitute not only a breach of fiduciary responsibility, but also cause significant and irrecoverable losses.
