Why intellectual property is no longer a purely legal matter…or why it shouldn’t be?

The title may cause some upheaval with my attorney colleagues and lawyer friends, but I am willing to take that risk. Since you decided to give this article a try, I have a feeling that you already know what IP, short for intellectual property, is so I will spare you the pitch on patents, trade marks, designs etc. and why you should have them. Historically, IP was a matter requiring legal professionals as it was and still is used to obtain exclusive rights to keep competitors out, secure (some) exclusivity in the market and/or protect your brand. In case someone infringes these rights, you are entitled to act. So far, my title doesn’t seem to hold, does it?

The consequence of having IP “managed” by legal professionals is that it has become rather complicated to understand from an outsiders point of view. One may be able to understand the technical side of a patent, however only very few CEOs are aware of e.g. the patenting process and the time and costs involved. Just ask your finance director… Note that I refer to the CEO as IP is often left to be managed by him or her. In effect, you leave something extremely important, expensive and complicated to the leading figure of the company, with the board expecting him/her to manage it correctly. Sadly, many CEOs do not comprehend IP well enough to manage it correctly, or exploit it fully or can spend enough time on IP matters. Just check that meagre 1-page IP section somewhere in chapter 6 of the company’s business plan. If advice is required, this advice often comes from, yes, legal professionals (and hey presto! we have come full circle!!). Now I ask you, what if you could get your information from someone who speaks your language, or even better, from the Internet?

Management of IP requires a specialist

Some large corporates or well informed SMEs employ IP managers, specialists in IP management taking the burden of IP from the CEO. Interestingly they often do not have a legal background but come from R&D, marketing or commercial roles and picked up IP expertise along the way.So, what is it that these people do that an attorney cannot? For a start, don’t be surprised if your first encounter with these specialists will not focus on IP at all, but solely on the business, the objectives, vision, sales, marketing, R&D and product management. To many CEOs surprise, such IP audits reveal hidden knowledge that could unlock extra revenue streams. Only when all this information is digested, the company’s IP strategy can be formed.

Secondly, mapping your competitor’s IP and making sense of it is only rarely part of the usual attorneys’ offering. Isn’t that ironic, blocking competitors via IP is their speciality, but mapping and understanding your competitors’ IP and the strategic impact is not? Both exercises do not necessarily require an attorney, do they? I already mentioned that IP can be used to unlock new revenue streams, think licensing. Yes, licensing deals are a speciality in the legal profession, but ask yourself this: what is the value of the IP you are going to license? Ask you accountant or attorney and be ready for a frown or two. Only very few specialists exist that are creditable IP valuers whose opinion counts, and are expert witnesses.

Big Data and Intellectual Property

I mentioned the internet. IP is public and databases such as Espacenet and WIPO can be accessed free of charge. Now what would happen if you cross all this data with other databases and smart algorithms (think Big Data)? Recent developments have resulted in powerful database tools that enable IP spending, geographical information, portfolio size and even litigation status information to be presented in clear infographics and, best of all, in a matter of seconds and without consulting a legal professional. Unsurprisingly, these systems are finding their way into the IP manager’s toolbox.

Finally, traditional IP firms have started to offer additional IP services by hiring non-legal staff to meet the changes in IP services or collaborate with specialist service providers, acknowledging the change. Better awareness about how to use IP, technological advances and the acknowledgement from the legal community can only means one thing:

IP is changing and you should not miss out benefiting from it!