Fail to Recognize IP (no. 4 in our list of IP mistakes)

Recognition of the importance of IP and its potential use (and abuse) has improved dramatically over the past few decades. However, there is still a good deal of general public confusion about the different forms IP can take and the protection available. It just isn’t a topic that stimulates the masses, except when IP directly impacts on a particular group or touches on an emotive issue: Harvard mouse, HIV and cDNA patents come immediately to mind. Even in creative and innovative companies, there can still be a strong sense that IP is entirely a legal issue to be left to the IP attorneys. Or at the other extreme, scientists may believe that they do not need to interact with IP counsel because their work cannot possibly be patentable, not recognizing that what may be obvious to them may not be obvious to PHOSITA (person having ordinary skill in the art). This lack of interaction not only sounds a potential death knell to the creation of an integrated IP strategy, but at a very focused level can often result in lost patent protection opportunities or inappropriate disclosure or use, leading to loss of important trade secret protection, loss of patents for inequitable conduct, loss of the opportunity to patent and so on. It pays to develop a company culture attuned to IP creation and use, and the serious consequences of allowing company confidential, including trade secret, information to seep out of the organization.

How does a company become IP savvy across the organization? Relatively simple standard operating procedures can be set up to review proposed publications for possible patentable subject matter, develop appropriately solid employment agreements and invention disclosure forms and procedures, conduct exit interviews etc. to limit the potential inappropriate disclosure of company information and assets. In addition, it is incredibly important to try to integrate IP experts in an organization and develop sound IP training programs. Company employees need a basic or, in some cases, a comprehensive understanding of IP. Integration is even more important than training. In-house or consultant IP representation at the Board level to develop big picture IP strategies; developing matrix organizations including IP counsel to “force” interactions; regular breakfast meetings with project leaders to catch up on developments; building IP into competitive intelligence to not only know what competitors are doing in the market, but also how they are playing their IP hands, and so on.

CEOs and their senior management know how important effective IP strategies and policies are today. It’s great to having a plan, but the funding for and the timely implementation of the plan are key to providing a competitive advantage. It’s the role of IP strategists to coordinate implementation and to secure appropriate funding, for example by highlighting the risks a company takes by not weaving IP strategy and IP teams into the fabric of an organization.

(This is number 4 in our list of IP mistakes and how to avoid them.)

Image credit: Newtown grafitti

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