It’s a funny thing about intellectual property – in my experience of presenting on the topic around Australia and New Zealand for most of the last 18 years, business leaders split quite neatly into two camps.
CEOs, directors, and business owners who know IP really well and are highly focused on its connection to their company’s value – both now and in the long term. They tend to have worked IP into business planning and growth strategies; own registered rights, such as registered trade marks; have strong employment and contractor agreements; use IP symbols and warning notices; have a rolling working relationship with IP professionals; and are curious as to what their competitors are up to in the same space. In fact, they may even be monitoring their competitors’ use and ownership of IP rights, such as trade marks and patents.
Typically, these business leaders come to this appreciation the hard way. Someone in their past, usually an ex-employee or former business partner, ripped off important IP and they’ve never forgotten it. I’ve even run into a CEO who had named new IP clauses in various contracts after ex-staff. Now that’s learning from a tough lesson.
But not everyone comes to this from the ‘once bitten, twice shy’ perspective – there are those business leaders who simply get that their key output is quite simply intellectual property in some form or other. And if it’s good enough to send out to the market, or rely on behind the scenes, then it’s good enough to identify, protect, manage and enforce.
This camp is populated by CEOs, directors, and business owners who have really not given IP much thought over their career, and funnily enough often have some form of conspiracy theory at work, such as ‘IP is really just about more money in lawyers’ pockets’, or ‘it doesn’t stop the one bad egg, so why bother’. That kind of thing.
If you were to conduct due diligence, say for a possible sale to a cashed up buyer, you’d find an IP ghost town. For instance, there would be no registered trade marks because they’re working on the common misconception that a business or company name is the same as a trade mark (that burnt quite a few small business owners when Virgin Enterprises decided to enforce their registered trade marks a number of years ago against flimsy business name registrations); there would be no shredders or secure waste service; and employment, sub-contractor and supplier agreements would be unlikely, so there would be no clear title to the IP being created on behalf of the business – just tumbleweeds blowing through town.
Winning at the IP Game…
If that sounds like a shemozzle, contrast the business leaders in ‘Camp 2’ with the Australian podiatrist who decided early on to take his IP seriously and ended up selling a big chunk of registered trade marks, patents, and designs for $70 million. Or, the couple with the new cosmetic business, who excelled at creating powerful brands, and sold their collection of registered trade marks and cosmetic formulas (which according to the buyer, were secondary to the sale) for $35 million. Or, the $432 million in royalties that the CSIRO raked in over roughly 20 years thanks to their 19 Wi-Fi patents. And I could go on and on…
Of course, it’s never too late to dash into Camp 1 and join the club of conscious IP owners. All you have to do is start with an online IP training course for you and your key staff to get up to speed, follow this with an IP audit, institute an IP policy, and plug gaps in IP protection by consulting with your trade mark and/or patent attorney. If your IP audit reveals some potential legal issues, speak to your IP lawyer and get them sorted now rather than let them come to a boiling point later.
For more helpful and practical IP articles, including about ‘Ghost’ and ‘Dirty’ IP, click here.