Don’t lose freedom of operation (no. 7 in our list of IP mistakes)

One of the key tenets for any successful business effort is to gain and retain freedom of action.  This tenet is aligned with the overall strategic goal of any person to not only succeed, but to succeed on his terms.  You do not want your opportunity to advance your business to be limited by others, be it your customers, partners, and especially, competitors.

In the IP world, freedom of action has a specific name called “freedom of operation.”  Losing freedom of operation means that a customer, partner, or competitor owns IP that could be used to enforce exclusivity against you.  Losing freedom of operation for critical IP can create a cascading effect of bad results for a company.  Let’s focus here on patents to start.  Losing freedom of operation can jeopardize the safety of a company if continued use of an invention will initiate or aggravate infringement charges.  It can work against economy of resources if your company must pay royalties to regain freedom of operation or conduct an expensive design around.  Royalties in particular can serve as a tax on potential profitability.  Losing freedom of operation can also waste a lot of dedicated resources used to develop IP for which someone else can claim ownership.

In a competitive space with a lot of R&D taking place, the only real way to avoid challenges to your freedom of operation is to work on IP no one wants, which is a whole different and all too frequent IP strategy mistake for another posting.  Losing freedom of operation itself becomes a mistake when you could have done something to prevent it.  High on the list of preventative steps is to file patents early and put into place a selective defensive publication process on incremental improvements you decide not to patent.

Defensive publications are public disclosures of technology designed to prevent other entities from being able to patent those technologies.  They are expressly designed as a tool for companies to use to retain their freedom of operation.  Defensive publications are often better tools for maintaining your freedom of operation than patents because they economically provide immediate global protection against patents on the disclosed technology filed after you published your defensive publication.  Defensive publications can be made easy to find or hard to find depending upon where you publish them and in what language.

Granted, you may choose for good reason to keep certain inventions secret until patent applications are made public, or secret indefinitely as trade secrets or while you develop them further for patenting, which leads to another important element of protecting freedom of operation.  This element is speed.  It is always easier to take an objective before an adversary arrives, and this is true in R&D where objectives are new and valuable solutions to recognized problems that customers will pay to own.  Those who can proficiently invent and protect at a higher pace than their rivals have the opportunity to secure their freedom of operation through an intelligent blend of patenting, defensive publishing, trade secret procedures, and the accelerated creation of still newer inventions that push the state of the art forward faster than competition.

For branding, loss of freedom of operation can likewise be expensive, and speed likewise is a key defence.  When a good idea or mark comes to mind, waste no time in protecting it.  Register it and make some provable business use of it, no matter how small.  Think globally, and do not forget to pick up the domain names for the Internet.  Remember that the further down the road you move with a mark, the more expensive it will likely become to address the situation.

(This is number 7 in our list of IP mistakes and how to avoid them.)

[Image credit: danorbit]

7 Comments on “Don’t lose freedom of operation (no. 7 in our list of IP mistakes)

  1. Pingback: General Global Week in Review 15 November 2010 from IP Think Tank

  2. If I really had to prioritize, I would say this should be number 1 or 2 on the list. I explored this a bit in a recent IP presentation. The slides are available on my Linkedin profile.

    • Thanks Naim – doesn’t the importance of freedom of action depend on your context? Say you’re a licensing company and you’re licensing key patents into a crowded space – do you care so much then?

      • Always two sides in strategy … If your priority is to gain and maintain your freedom of operation, then it implies that there may be someone out there who will gain from your losing or potentially losing your freedom of operation. Maybe point of view is whether you intend to profit from gaining your freedom of operation or from challenging the freedom of operation of others.

      • What I meant was that if you’re a company with products or services, that being the most general case (licensing only companies are far more less than the general case), then FTO becomes the most important doesn’t matter how you obtain it. For licensing companies, providing FTO to other companies is their bread and butter therefore their priority would be different. But they are the means to obtain FTO. An FTO for a licensing company would be to procure IP that is clearly ahead of the game or at least not comparable to other existing IP.

      • I would like to add that even licensing companies need an FTO strategy and an effective FTO for a licensing company would be to procure IP that is clearly ahead of the game or at least not comparable to other existing IP.

  3. Pingback: 33 (make that 40) intellectual property mistakes and how to avoid them

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