An idea, by definition, exists primarily in one’s mind, where it remains somewhat safe, but not very useful as long as no one else knows about it. In order to produce (commercial) value from that idea, it needs to be expressed, and there are often the starting points of many potential problems and challenges for the creators, the developers of that idea.
Fundamentally, the protection of the property rights of the products of the mind represents a kind of contract between society, the government and the people who created/developed the idea.
But, the risks (threats, vulnerabilities) to ideas (information assets) today, e.g. compromise, theft, misappropriation, infringement, falsification, etc., are asymmetric, change rapidly, and when they occur they can instantly :
. stifle the drive for further development and/or (economic)
idea marketing
. undermine projected transactions, investments, strategic (business) plans or
competitive positioning and
. erode (evaporate) the value of ideas and their projected (future) use, profitability, or
anticipated competitive advantages.
In the pre-Internet era, when companies experienced compromises/losses in their confidential proprietary information and/or trade secrets, etc., a common strategy/practice was to try to contain (compartment) the damage and/or the extent of the loss. , usually in a contingency planning/business continuity context. Today, however, while such strategies may be feasible in limited circumstances, they rarely reflect the ‘nanosecond speed’ reality at which valuable information assets can be acquired and globally disseminated to an ever-increasing variety of users. adversaries, eg, infringers, competitors, counterfeiters, etc. And, once the asset has been successfully compromised, reliance on containment, in the conventional sense, is rarely a viable option.
Increasing (exacerbating) the likelihood that a company’s proprietary know-how, etc., will be compromised is the widespread availability of ultra-sophisticated and predatory data mining, scanning and analysis (competitor intelligence) tools ( software) that can discern and extract substantial advantages embedded in a company’s information assets and ultimately distribute them to a growing maze of highly organized, skilled information brokers and corporate- and state-sponsored economic-competitive adversaries globally . This makes a company’s proprietary information assets at risk (vulnerable) 24 hours a day, 7 days a week, and at increasingly earlier stages of (their) development and without regard to protections conventional intellectual property.
Thus, while conventional IP enforcement mechanisms (i.e. patents, trademarks, copyrights) remain a very nuanced and country-focused requirement to transfer ownership and provide a legal standing to address potential disputes and challenges, the reality is that patents, in particular, are reactive, that is, they require constant self-monitoring and control by the owner/proprietor to be even reasonably effective.
Of equal importance, the purported discovery effects of intellectual property (eg, filing, issuance of a patent, for example, will actually prevent others from stealing, infringing, counterfeiting, and/or misappropriating) are ( a.) conceptually and practically oversold, and (b.) easily/easily outperformed, circumvented, and completely ignored by a growing global cadre of ‘legacy-free’ players and well-organized information brokers, infringers, and counterfeiters.
Legacy free players, as characterized by Thomas Friedman (The World Is Flat) are individuals, organizations (worldwide) who generally have, for a variety of reasons, little or no cultural, national heritage to respect private property rights (tangible), much less. Intellectual Property Rights. Thus, legacy free players may brazenly engage in theft, misappropriation, and industrial (economic) espionage to acquire the ideas, intellectual property, and proprietary knowledge of others to better themselves (economically, competitively) and without incurring the (huge) down payment. costs associated with ‘idea development’ (R&D).
Arguably then, in the increasingly predatory, aggressive and winner-takes-all global (transactional) business environment, conventional forms of intellectual property are rapidly becoming less relevant, perhaps even obsolete, as (a.) the primary “tool” for safeguarding a company’s most valuable assets, (b.) ensuring that the rightful owner receives the benefits of economic and competitive advantage from the hard-earned and costly knowledge they have developed, or (c.) guarantee the control, use, ownership and value of its intangible assets. assets and intellectual property that are at stake – part of a transaction.
That is, in many transactions (in which a company’s intellectual property and intangible assets are at stake, as part of a deal), one can now assume that all or a significant part of the value of those assets and the cycle of functional-commercial life will be significantly reduced. , if not completely lost (unrecoverable).
Unfortunately, the new business reality is that the conventional application of intellectual property produces little benefit to an organization, other than providing a (legal) position to resolve disputes and/or initiate litigation when challenges arise, which is a common occurrence. and increasing consistency. This does not mean that conventional IP protections should not be used. However, any assumption that the issuance of a patent, alone, will be sufficient to absolutely deter (inhibit) infringement, product piracy, misappropriation or theft and allow the rightful owner/holder to maintain control , use, value, and property rights for 20 years, is not a credible, feasible, or prudent course of action.
Therefore, today it is imperative that business decision-makers (incumbents, owners of intellectual property and intangible assets, proprietary know-how, trade secrets, etc.) practice consistent administration, supervision and management and of those assets, including (a.) monitoring their condition, stability, fragility, and sustainability, so that (b.) ownership: IP rights, where necessary, can be aggressively pursued in a timely manner (in a timely manner). real).
Even in light of the economic fact, the business reality in which more than 65% of the value, sources of income and future wealth creation (sustainability) for most companies are directly linked to intangible assets and the PI, a significant percentage of the company’s intangible assets. They go unnoticed and undervalued. This is especially true when a company’s know-how (intellectual capital) has been literally embedded in its products, services and processes over many years, as a “company culture” that often goes unnoticed and underestimated to the extent that that contributes to quality, consistency and sustainability.
Ultimately, the probability (chance) that a business will experience a compromise, breach or loss of its IP, intangibles and/or proprietary competitive advantages and know-how should not be characterized as merely representing another ‘risk of doing business’ . Rather, in today’s global business environment, it more closely resembles an inevitability that, if dismissed or left unchecked by company decision-makers, senior executives, boards, and D&Os, can constitute not only a breach of fiduciary duty, but also cause significant and irrecoverable losses.