Analysis

Strategy without analysis is like turning up to play a sporting match when you don’t know what sport you’re playing, what equipment to bring, the rules, who your opponent is or indeed where to show up for the game.

It’s not uncommon for far reaching errors to be made due to a simple lack of analysis.  The people involved may know what to do but never get that far because they didn’t pause and think.

Sun Tzu advocated analyzing oneself and the enemy according to a suite of weighted factors to come up with a score.

You obviously need good information in order to conduct good analysis.  What should you analyse? Start with the goal you have in mind – make it as specific as you can.

Then ask lots of questions.  Surprisingly, the ability to ask good questions is more important than having ready made answers.

I use a toolkit of question prompts I have developed over the past twenty years as a way to pose questions from different perspectives.  Our IP Playbook has been used in the same way.

Provided that you act on it in a timely and appropriate manner, you can never have too much analysis.

This is one of the 100 IP Strategy Principles.

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Whoever has the best information is most likely to succeed and on their own terms.


It is difficult to overstate the importance of high quality information to the development and execution of world class IP Strategy.

The best IP Strategists are keen practitioners of competitive intelligence and analyse a wide variety of  information.

I use checklists of information sources tuned to different kinds of issues – some are free, some paid and some are highly specialised, bespoke services.

A key point in all if this to get as much first hand information as possible.  I was once in a natural disaster situation and we spent a lot of time trying to get accurate information.  We checked websites and called official departments.  The best information, of course was from the local officials manning road blocks.  Once we managed to speak to them, we knew exactly where we stood.

Do you remember the first time you played Chess against a much better player?  The insights the other person had, seemed like magic.  How did they know all of your possible moves and how were they prepared for all of them?  They just had more and better information than you – in this instance garnered from years of playing the game.

Information is magic – use it wisely and you will be even more successful.

This is one of the 100 IP Strategy Principles.

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Careful where you aim

There’s a lot of lip service given these days to ‘aligning IP with business goals’.  Most times there’s no indication at all about how to do that or any of the practicalities.

One practical matter that comes up time and again is around the goals themselves.  Specific goals allow more room  for compromise or pivots in the approach used to obtain what really matters.

 

Putting it another way, an indirect strategy is often the best – picture Alexander the Great at the siege of Tyre – he built a one km long causeway to turn a naval battle (which he would lose) into a land battle (which he won, emphatically).  The more specific  your goal the more room to use indirect means to achieve it.

Consider the following goal: to lead our market segment in sales of our latest innovation.

Compare this to the goal of maximizing business unit profit by the most effective means.

Say there’s a competitor who launches a product which infringes one of your patents in one of your key markets.

To maximise the number of units sold by you then you probably want an injunction stopping the competitor from selling.

However if it’s business unit profit that is the goal then a license may be much better.  You may in fact find that a cross license with access to another technology or market creates even more business unit profit.

Careful where you aim because you may not actually want to be there at all.

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100 IP Strategy Principles

I’m delighted to introduce a new blog post series – 100 IP Strategy Principles.

It’s partly inspired by the 10th century Chinese text ‘One Hundred Unorthodox Strategies’ (which in turn incorporates many principles from the Seven Military Classics including the well known Art of War by Sun Tzu).

As with the popular ‘5o IP Strategy Mistakes‘ series, I’m very keen for readers to see your feedback and comments and suggestions for further tips (whether inspired by these or otherwise).

Each time I publish another post in this series I will add it to this page, so that you have them all in one place.

Please do join the conversation – I look forward to your thoughts.

1 – Information is magic

2 – Analysis

 

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A number of you would have guessed by now that I decided a while ago that I should return to being a solo consultant.

As the firm got bigger, I found that looking after the team pulled me in a direction away from a place where clients are clearly first, and I also became so busy that I had less and less time for clients.   Over recent years we have been working back towards a solo consultancy in a carefully thought out process.

So the firm will soon be back where it should be – a solo consultancy.  I will miss the team of great people that previously made up Think IP Strategy (though I am delighted to be maintaining these friendships).  I will continue to collaborate on various levels with a number of them too.

Going forward, though I will be rebranding back to Duncan Bucknell Company and you’ll notice a few things in that vein as I work through the process of the rebrand.  (When I get time between looking after clients, of course.)

Like many maturing companies, Facebook has been unwinding complexity from its business(1).
What does this mean for the IP Strategy team?

If you’ve built intellectual property strategies around products or services that are going to be shelved what do you do?

Do you have a good understanding of the new strategy?

Is there a new strategy?  And if not, how can you optimize around a particular direction?

If you’ve spent the time to map all of your IP Rights to the products and services they support, you’ll have an easier time identifying which IP rights need to be reassessed in light if the change in focus.

If you haven’t done this exercise yet then do it now.

Here are some brief thoughts to get you thinking.

One method is to assign IP Rights into one or more of the four categories:
 A – supporting current products or services.
 B – supporting future planned products or services.
 C – strategic value (eg covers a current or likely future product or service of a competitor.)
 D – no strategic value but potentially salable or licensable to a non competitor.

When the business team starts to ‘reduce’ complexity’ – ie pull products or services, you can check whether the supporting IP Rights are in any classes aside from A and manage them appropriately.

Of course, this is just the tip of the iceberg – what would you do first?

(1) – (See comments from Emily White, recently tasked with monetizing Instagram.)

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WSJUsing an old tactic, Procter & Gamble will reduce the number of products per package to increase profitability. (‘downsizing’)

According to the WSJ, this is in an attempt to recoup costs of innovation without increasing per package price for consumers in these difficult economic times.

Does this have anything to do with IP Strategy?

Should it?

Strategy is about achieving objectives, and whilst you need to adjust your strategy from time to time, it can be pretty hard to achieve what you set out to if the business alters key assumptions along the way.

Here we have a brand built on the message of quality and backed by a large IP Estate.

What message are you giving to consumers who now get less diapers in that brand they trust and always buy?

If you’re that in-house IP Strategist, you may not have any input on whether such tactics will be used, but you may be involved in optimising the strategy from the IP perspective.

Perhaps it would be good to ask why are we adding expensive technology in a price sensitive market?

Perhaps we should deploy the new technology with a different strategy?

For example, perhaps it would be better to give people a choice. Consumers can purchase the same product with the older technology and pay the current price, or, if they want the improved performance, they can pay more for it. Clearly there are some IP Strategy opportunities right there – the new sub-brand for the higher performance version, etc. (Perhaps even use a three tiered approach.)

Another approach would be to take another look at innovation designed to lower manufacturing and other costs that are built into the product.

What would you do?

On strategy and priorities

A quick personal note to apologise to our faithful readers for the lack of posts from me on this blog recently.

I am currently travelling for a year with my family.  While I’m keeping up with clients and their needs, as always, I don’t have as much time for other activities, like getting out to conferences or this blog.

I have some ideas for thought-provoking posts and will get them up here as soon as I can.

In the meantime, please do look out for posts from the rest of the team and I hope that all is well with you and look forward to continuing the conversation here, and in LinkedIn etc.

Regards

Duncan

The team at Think IP Strategy created their list of top IP mistakes.   We’ve listed them here for you and we’ll give you a more detailed post on each and everyone.

What would you add?  We’ll happily do an extra post on any new ones you suggest.

(They are in no particular order, because as you know, that depends on context.)

1.      Fail to Protect IP

2.      Fail to Exploit IP

3.      Fail to Maintain IP

4.      Fail to Recognize IP

5.      Fail to Protect Associated IC

6.      Infringe IP

7.      Lose Freedom of Operation

8.     Have No Publication Strategy

9.     File Too Early

10.  File Too Late

11.  Treat IP as purely a Legal Issue

12.  Fail to Think Globally

13.  Fail to Think Locally

14.  Spend Too Much to Protect Too Little

15.  Spend Too Little to Protect Too Much

16.  Misunderstand the Strength of IP

17.  Build Static Instead of Dynamic Defenses

18.  Underestimate Competitors

19.  Overestimate Competitors

20.  Fail to Leverage Outside Innovation

21.  Become Mired in the Day-to-Day

22.  Fail to Optimize the Portfolio

23.  Fail to align IP strategy with Business Strategy

24.  Treat IP as a Cost Center

25.  Accept the Tyranny of the Toos: Too hard, expensive, difficult, confusing, etc.

26.  Take the Advice of Counsel on Faith

27.  Mismanage Outsourcing

28.  Be Satisfied with the Status Quo

29.  Create Your Competition

30.  Fight in the Wrong Places

31.  Fight in the Wrong Way

32.  Choose the Wrong Fights

33. Develop IP that no one wants

34. Fail to Monitor IP (suggested by ‘mc’ – see below and thanks again)

35. Fail to Abandon IP (suggested by ‘Chuit’ – see below and thanks again)

36. Fail to Value IP Literacy in Staff at all levels (suggested by ‘Ruth Soetendorp’ – see below and thanks again)

37. Fail to include IP Awareness on staff training agenda (suggested by ‘Ruth Soetendorp’ – see below and thanks again)

38. Fail to communicate IP Strategy as part of your marketing plan (suggested by ‘Dids MacDonald’ – see below and thanks again)

39. Claim too much (in patent claims) [And I would add, ‘or too little’, and broaden this to Trade Marks and Designs as well.] (suggested by ‘Naim Kuhn’ – see below and thanks again)

40. Fail to clearly assign IP responsibility within the organisation (suggested by AJ with slight modification – see below and thanks again)

41. Seeing things as we wish them to be

42. Planning without the ideal strategy in mind

43. Do it yourself IP Strategy

44. Withholding important information from legal advisers

45. Miss the point on benchmarking

46. Think that there are only 50 IP mistakes that you can make (suggested by Philip Argy – see below and thanks again)

47. Make dangerous interpretations

48. Focus on the lesser value in licensing

49. Use questionable ethics

50. Fail to lead

I received a great question at an IP strategy training course I taught.  The question was about the difference between a strategy, a plan, and a process.  It came about because while we expect on paper most people could match these three words to their appropriate definitions, in practice, they get confused.  So to address the definitions in practice, I thought it might be fun to examine their purpose for their employer.

A strategy is a solution to move from where you are now (A) to where you want to be (B)…or put another way, it is what you want to happen to achieve an end.  Strategy is a class of solution that deals with uncertainty – the possibility that opposing forces may inhibit you reaching (B) or reaching it in acceptably good form.

A strategy should raise the probability that its employer will reach (B) in good form.  It does so mostly by creating conditions that favor success.  For example, a strategy can be that you will only support businesses where you can be a first or second tier player, where your objective (B) is to build a product solutions portfolio that fits that defined nature.  Building a portfolio of first or second tier only product solutions is what you want to do.  It is a solution to a problem associated with running a type of business that you determined third or less tier product solutions will not support.  Your strategy does not specifically say how you will arrive at this end.  That is where your plan comes in.

A plan is how you will move from (A) to (B).  As such it should support your strategy by providing a way to reach (B) that provides an acceptable balance of risk and reward.  So your strategy is what you want to do and your plan is how you will do it.  For example, you may decide as a strategy that you need to acquire lots of patents in an area to help you maintain freedom of operation, and then your plan is how specifically you will do that…R&D, acquisition, license, etc.  This is, of course, oriented on the level of organization you are dealing with.  Company, divisional, team, and personal plans and strategies take place simultaneously, which creates issues of alignment that we can cover in a future post.

Understanding the difference between a strategy and a plan allows you to make useful strategic planning decisions that separate the two.  It allows you to act in line with General George S. Patton’s insightful quote, “Never tell people how to do things. Tell them what to do and they will surprise you with their ingenuity.” You can include statements of intent within your planning so that when plans go wrong, which they often do, people can adjust their how-to-do-it (the plan) in a way that makes sense with what you want them to achieve (the strategy).

A process, in contrast, is a defined way of doing a task.  It can be a linear in nature – do A, then do B, then do C – or it can have branches – do A, then B, and then C or D depending.  A process sets strict parameters to the “how” that can, if misapplied, allow the “how” to take priority over the “what.”

Since a process is so anchored in the “how,” it can never be a strategy.  If used well, a process can be an essential part of a strategy.  For a strategist, the chief purpose of any process is to drive out uncertainties that do not need to be there within a plan.  For example, no matter the strategy and plan you chose regarding IP, you want to anchor that strategy and plan on good IP.  As a part of a strategy and plan you can set processes in place for idea review, documentation, and protection that assure you will have the quality of IP protection you need as circumstances arise.  Then you can address all the uncertainties of what competitors, partners, and customers may do to challenge or advance your IP portfolio without also having undue uncertainty about whether you can present good IP documentation when you need it.

So when you do strategic planning for IP, you and consulted team members first determine what you want to do – your strategy.  You next determine or appropriately delegate how you want to do it – your plan.  You and your team then look at all the uncertainties associated with your strategy and plan with the mindset to drive out those uncertainties that do not need to be there.  To drive out uncertainties, you may incorporate processes – often as simple as checklists – so that those executing your strategy can focus their talents where uncertainty remains.  You do all of this in context with your opposition because you can win or lose any strategic contest on any or all or your strategies, plans, or processes.

Image credit: Hemera

It doesn’t really matter how strategic you think you are, if you can’t access a pragmatic and clear construction of patent claims, you’re in trouble.

While patent terms always come back to the context of the specification itself (and the file history in some countries), Oxford’s Thesaurus of Claim Construction is a very handy addition to your armoury if you need to get to grips with patent claims. Co-authored by Stuart Soffer and Robert Kahrl it provides a very useful set of alternative constructions of words and phrases with citations from US patent cases and brief commentary.

This two volume set also has insightful sections on means plus function elements, design patents and how to determine what ‘ordinary skill’ really means in the context of the patent you’re looking at. With an index that runs to over 200 pages, it’s also easy to find everything.

Please click here to purchase a copy of Thesaurus of Claim Construction.

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