Here are some thoughts on intellectual property if you’re about to go through a business transformation:
- Create a new IP Strategy to complement the business after transformation.
- What Products or Services are you retiring? What IP is associated with them? Will you cull the registered rights immediately or is there some commercial benefit to holding them for a while longer? Are there licensing options that arise here?
- What new Products or Services are going to come online? How advanced is your IP Strategy for these? How advanced is your analysis of the IP ecosystem in these new areas (including key players, potential collaborators and competitors)?
- What new IP risks will arise in the transformed business? Do you have a process in place to identify and deal with them?
- What risks will diminish or disappear with the change? What reporting do you need to do in this regard?
- Are there new issues to consider from an IP Management perspective? Are there new types of rights? New countries to cover? New relationships to build?
- Select a small team to work through these and other related issues, then whiteboard or better still, wargame what it will look like.
The two main areas to consider are protecting your IP before you lose the chance, and managing risk associated with something new out on to the market.
Protecting your IP
This should be part of a plan that goes hand in hand with your technology / product development pathway. So it shouldn’t be something that is only thought about coming up to launch. In fact, by the time you’re preparing to launch, any protections measures should be in place and you should be just polishing and double checking things from an IP protection perspective.
Do you have freedom to operate? How do you know?
What level of patent clearance has been done? What level is appropriate for this offering?
Have you undertaken a scan for registered and common law trade marks in your target market?
How confident are you that no copyright material has been caught up in your new offering (including software code)?
What about registered designs (design patents) and other IP rights?
What strategies have you put in place to mitigate risk where something unexpected occurs?
Excellence – it’s a big call to make. It takes a lot of work.
How much time do you spend pursuing excellence in your IP Strategy?
How do you know?
Here’s a challenge – regularly set aside time just to think about how you could improve your approach to IP Strategy.
And if you’re really serious:
- Make it a habit – do it at the same time each week, even if it’s only half an hour.
- Make plenty of notes and lists.
- Monitor your progress.
- Make yourself accountable to someone by having a regular discussion.
How to make good IP decisions when there’s no time to spare, in a complex and rapidly evolving world? Can you balance multiple perspectives and factors in the heart of the moment? (legal, technical, market, brand, business goals, corporate politics…).
How do you do that effectively, and quickly?
Naturalistic decision making has some interesting and useful answers. A lot of the insights in this area have come from observing people making life and death decisions with very little time, such as firefighters and the military, but it applies much more broadly.
It turns out that people don’t analyse a list of options when faced with an important and time critical decision particularly in ambiguous circumstances. Instead we do a rapid scan of our memories for patterns and similarities in past experiences. We check these against the current situation, find the first that would work, and start to apply it. We stop and adjust again each time we identify another issue.
Even more interesting is that many decisions that are not time critical are also made this way.
You can think of those memories and patterns as a slide deck that your brain rapidly sorts through. So the short answer to how to make better decisions, faster is to increase the number and quality of slides in your deck. That comes from lots of useful experience, but it also turns out that it doesn’t have to be from actual, real life events to create an effective slide in your deck.
Can you think of possible ‘crisis’ situations where you are going to have to respond quickly?
How can you prepare for these and give your team the right, high quality slides to draw on?
At what point in the future will you be able to challenge a competitors patents for lack of inventorship because they were AI generated not human generated?
Is it still protected by copyright in the countries of interest to you if there was no human author?
Who is responsible for a rogue AI sending out millions of misleading messages and posts about your brand?
How do you deal with AI that reuses confidential information for a purpose that was not contractually allowed?
What about the AI that infringed copyright?
How are you adjusting your IP Strategy for this new AI world?
The business model used by the business you are supporting profoundly affects the way you do IP Strategy.
Depending on the industry, the business model can change quite dramatically and make your efforts obsolete.
They won’t always recognise nor tell you that they just changed the business model – so watch out.
If you’re close to the business and understand how it really works, then you’ll probably be part of the change when it happens anyway.
Mergers and Acquisitions are a key source of strategic value in business.
You can make an enormous contribution to M&A. Its a simple thing to set up a scan for valuable technology and IP using standard databases.
Stay in touch with the M&A team, understand what they’re looking for today and help them find it.
If the deal is on, you will have a head start on the due diligence process, and you will have time to dot the i’s and cross the t’s.
An act of deception has won many a military battle – from Sun Tzu to the Trojan Horse, from Alexander the Great, Hannibal or Napolean to the Spaniards defeating the overwhelmingly more numerous Incas.
Here are some examples that I have seen deployed to mislead a competitor – what would you add?
- Creating a ‘smokescreen’ of patent filings covering technology of lesser commercial interest to make it difficult to ascertain the actual technology direction or new product under development.
- Creating a similar ‘smokescreen’ of trade mark filings to protect a new brand or new category for a brand.
- ‘Leaking’ misleading information to a known informant.
- ‘Seeding’ competitive intelligence sources with additional information that whilst true, suggests a direction or strategy other than the intended course
Deceptive practices always carry the risk of breaching anti-trust / competition law and, in my view are rarely warranted. But don’t let an opponent out-manoeuvre you by deception. Look for facts, and specialist, local knowledge and verify them.
It’s been widely said (and attributed to Peter Drucker), that culture eats strategy for breakfast.
Whilst Mark Fields made that particular phrase popular, Drucker definitely made it clear that culture will block attempts to implement a strategy that is incompatible with it.
So what does that mean for IP Strategists?
If you try and implement a strategy that is counter cultural for your organization – you will fail.
For example, try getting that team of hip, open source guru, software engineers you hired to build and protect patentable software infrastructure. To them, patents are evil. You need to hire a different group of people. (Sure, you can try modifying their subculture, let me know how you go with that.)
Or try and get the team at that fast-paced marketing focused, brand factory company to pause and check for trade marks before launching their latest brand (or ideally before going too far down the brand development path). Think instead about how you can build that safety check into their current way of doing things.
Everything you do (that’s everything) has to be done with culture in mind.
But that’s only if you want to be effective.