Hold everything guys isn't IP already clearly understood and important?

Listened to another great podcast today from John Byrne at Business Week.

This time the cover story at Business Week is their annual survey with Interbrand of the global top 100 brands.  We’ve blogged about this before.

So, with all of the noise lately about the difficulties of getting intellectual property into the boardroom and properly communicating value when you get there, you’d be forgiven for thinking that there’s been a glitch in the system.

Coca Cola sells carbonated water and flavouring, their brand is worth nearly 69 billion dollars.  Coca Cola is not a soft drink company, it is a brand management company.  Does anyone seriously think that the board room is not closely watching the management of the IP protecting the brand.

Maybe these guys in the global top 100 are outliers – maybe they are special.  One of the reasons why they are in the top 100 is because they invest heavily in their brands.  Maybe that means we’re talking in circles here. 

Isn’t it supposed to be the world’s best practices (in any field) that other companies should be trying to emulate?  If that’s right, shouldn’t the success of these companies be a guiding light to others about how to invest in and manage their intellectual property?  Shouldn’t that be enough (or at least a very good start)?

Perhaps what we’re really talking about here is a general lack of discussion about intellectual property in the broader business community, rather than a complete absence of IP in the boardroom.

Interestingly, a global search for ‘intellectual property’ in all Harvard Business Review articles revealed 16 articles in the past 12 months.  (Some of these only refer to intellectual property in passing and only once in the article.)

Maybe the focus should be on getting intellectual property more widely discussed, as a discipline from which to create opportunity, like sales, marketing, finance and so on, not a legal problem.


12 Comments on “Hold everything guys isn't IP already clearly understood and important?

  1. Duncan- The IP community is caught in a box. Your stock in trade is legal protection of knowledge assets. But most knowledge assets are either not protect-able or not protected (for a variety of reasons). If you have nothing to say about these assets, you will be stuck in that box. Mary

  2. Thanks MaryLooking forward to the podcast you’ll be on soon.I can see there are lots of reasons for you to say that.I think that may be one definition of intellectual property – but not the only one.

  3. I agree 100% that IP issues are critical to business and should become a larger part of the corporate discussion. Unfortunately, many IP attorneys haven’t been effective at communicating IP’s importance. Maybe it’s time for IP lawyers to branch out from legalese and learn to speak the language of business.http://www.GeneralPatent.com

  4. The biggest problem I see with the “emulate” mantra above is that IP is not monolithic. Even the sub-systems, Copyright, Trademark, Patent (or arguably related matters such as Likeness) are each populated by many types of players with many types of needs.This is perhaps best highlighted by a comment recently overheard that there are different values in the tech community versus, say, the entertainment community with respect to IP. These differences in no small part stem from the different eras and vastly different operating principles which give rise to these communities. In a tech setting promiscuous sharing of what might otherwise be deemed “property” can serve goals of efficiency (and thus bottom line). In an art setting there is rarely any similar economic offset. And, of course, neither of these examples are relevant to the consumer goods branding example of certain cola companies.Because of this, my inclination is that the problem of “Hey, guys…” isn’t that IP lawyers are inarticulate, but that the lumping of all these different items under the two letters is simply too reductionist for our own good.

  5. thanks very much Robert – this is greatThis isn’t only about IP lawyers, though.If reductionism shouldn’t be part of the next phase, what would you recommend? 

  6. Duncan,I think the development of taxonomy in the biological sciences might hold lessons for us. We might be dealing with something similar to the differences between morphological and phylogenetic taxonomies in the life sciences, which is to say, the way we currently lump together or pull apart practice areas might benefit from being cast loose of traditional notions (akin to the morphological approach) and at least theoretically aligned with something more functionally based (ala a phylogenetic approach). For instance, I know at least one Bar association where the Entertainment section co-opts a certain amount of the domain that might arguably fall under the purview of an Internet section. While fully recognizing the realities of extant power and economic distribution, it still seems valuable to consider how things might develop, and that requires forecasting along at least two possible paths: One in which the current distributions of power and money dictate, and another where current distributions give way in the face of technological change which may prove as disruptive to existing structures as the cotton gin proved to the economy into which Whitney introduced it.Admittedly, this is speculation and smacks of futurism. Many, perhaps most, IP attorneys with solid practices may never need worry about any of this. But I tend to think IP as we know it is on the precipice, as with the blacksmiths who tried to block the coming of the railways. The most salient difference is that in the current situation “the blacksmiths” have tremendous financial and political capital, and thus may in fact succeed in delaying if not stopping outright many of the changes that could be wrought with new technology. Time will tell on that one. Either way, I think a keen eye for the vast differences in law practice subsumed by the two letters “IP” can only aid anyone seeking to better understand what may be coming as well as to better serve extant clients under prevailing circumstances.

  7. Thanks RobertI wonder whether Mary would argue that your response tends to reinforce her point.  What do you think?

  8. Thanks Duncan- Robert makes two interesting points. His perspective is the differences within the IP community but I would broaden it.First the question of taxonomy. I have had an interesting conversation on my blog this week about the definition of IP. A number of my lawyer friends have expressed to me that IP is only that which is protected legally. But I think it is very hard to draw a hard line. I still haven’t decided what to call corporate knowledge. Should I call it IP (and distract the IP community from my point) or to try to coin yet another new term. Many have scolded me that semantics are a distraction. But part of me thinks that they are very important. My work focuses on the business of leveraging knowledge. I believe we need a viable vocabulary if we want to be part of a practical business dialogue about how to do that.  Here’s that discussion:
    (additional comments welcome!)Secondly, the question of business model. What is the problem that IP lawyers solve? I think that most answers would focus on risk management (please correct me if I am wrong).Yet, I would guess that most money made in the IP legal community comes from writing patents, different kinds of filings and contracts. This is actually very transactional. It is only one set of solutions to the need for companies to “protect” their knowledge.The intelligence and training of lawyers should enable them to think more strategically and help businesspeople navigate the complex challenges of collaboration, technology and open communication that are changing businesses everywhere. How can/should lawyers help in this discussion? Can you use your knowledge to assist businesspeople think more strategically about knowledge that should be protected and knowledge that should be shared freely? It will require a mindset and a business model that provides more than contracts for hire.

  9. Thanks Mary, great comments as always.I must confess my skepticism at the ability of the legal profession at large to transition completely away from risk mitigation to value creation.I think the IP legal community is a tiny and often insignificant part of the overall debate about using intellectual property strategically to create and demonstrate value.Why don’t we just call corporate knowledge ‘corporate knowledge’?

  10. Hi Duncan:
    I am a bit late to this discussion.  My friend Mary Adams pinged me and wanted me to give my 2 cents, so here I am, and I am glad I did–fun stuff.
    First, thanks Duncan.  When I read your post last week, I didn’t really think too much about the depth of question, but seeing the substantive responses, I am again reminded how good a forum for moving the conversation along.  This is a really important contextural issue, that, as you indicated, counters the typical perspective that the C-level doesn’t think much about what we do. 
    Yes, Coke is a global brand company, and it is possible (perhaps undeniable) that they spend more time on that aspect of their business than anything.  (Suffice it to say that I have known a number of people who practice IP at Coke given my presence in Atlanta.) 
    My view–which comes from deep corporate experience–is that, historically, most companies focus on what they believe is their core IP based upon their greatest perceived value.  Other forms of IP are then given short-shrift due to the knowledge and bandwidth.  For Coke, this may not be a bad thing because, given the vast variability in products over the world and speed with which these products change, it is doubtful that filing patents would make financial or management sense.  Could Coke file more patents every year–probably.  Does it make sense to–no.
    For Coke this focus on brands (and, of course, trade secrets) makes sense.  However, for other companies it is short-sited and value-destroying.  A former client of mine had a super-smart IP person running the consumer products business, the most profitable and high-profile aspect of the company.  Her expertise was in brands, and she correctly stated that brands were very important to the business.  However, she had almost no experience with patents and creating value from this form of IP.  Since she was making the day-to-day decisions and had the ear of the C-level for long-term strategy, it was not a great place to be for a patent specialist as resources were committed by the C-level to what she thought was important.  And, she was wrong, the competitors, some of the best corporate practitioners of total IP management, placed incredible importance on their patents.  My client, therefore, didn’t have enough ammunition in the arsenal to compete with the better IP-armed competitors. 
    In sum, I am not willing to concede that the C-level gets IP without knowing more.  They may just be making the right decisions for this time.  Only when I see a company acting as if IP is part of the entire corporate value eco-system will I be willing to say that they “get it.”  In other words, corporations need a “balanced scorecard.” 
    (And I would be remise in not agreeing that IP practice is “on a precipice.”  I am very excited to see this happen–although many of my rich and comfortable IP lawyer colleagues are not.)

  11. Duncan, Mary, Thanks for the mentions. It’s good to know I’m at least in the ball-park and arguably relevant to the conversation at hand.Mary, you mention push-back on semantics, but I think that should always be taken with a grain of salt. Once the semantic playing field is laid out to a given party’s advantage they can be expected to resist anything that might change things.Duncan, you ask, “Why not call corporate knowledge ‘corporate knowledge'”, and that’s a deep question, touching on Mary’s experience of push-back with regards to semantic issues. What folks call their pursuits is not as trivial as perhaps one would expect. The map may not be the territory, but one certainly can sell books by the cover, if I may be allowed the mixed metaphor. So, on the one hand, practitioners need to have a very clear-eyed understanding of what they do and how they do it and where it fits and where it’s going, and those things may or may not be labeled in ways that are particularly useful as descriptions. But if those labels suit the requirements of the C-level (assuming we mean “CEO, CFO, etc”) then they will prevail regardless their substantive usefulness as identifying descriptions. The C-level cannot be expected to be motivated by technically accurate and descriptive labels. Presentations to the C-level must instead hit the right mix of sex appeal, sound bite, buzz word, and just enough corporatese so they do not feel they are being talked down to by the specialists whom they employ. That’s a hard one.I agree with Mary that my simple bifurcation is not nearly granular enough. It’s really just a toe stuck in the water to test the temperature. One could easily posit three axes, a C-level/Specialist axis, a traditional/functional axis, and a plaintiff/defendant axis. With just those three sets of distinctions we could craft quite a refined set of descriptions of the various beasties in the IP cage.But would it be worth it? That nice three dimensional thing could be a fun paper for an academic, but would it be of any value outside the ivory tower? I suspect not. I would guess there is a sweet spot between the simple “this or that” split I offered earlier and some multi-level system suitable for a master’s thesis. And, not to put too fine a point on it, I’m here, chatting with you good people, because I suspect that sweet spot will be found by the likes of our host and the other folks commenting here.

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