As an Intellectual Property (“IP”) Strategist, I look at innovation through the prism of how IP and intangible assets can influence the process. There is a common belief that innovation cannot succeed without also having patent coverage on underlying products or technologies. Sometimes this is true, other times it is only partially true, but often, it is not true at all. The key is to understand whether and how a particular innovation pathway will play out with or without IP protection at the various stages. Moreover, often IP has little to do with the success of innovation, but other forms of intangible assets—such as, contractual relationships, organizational knowledge, etc.—form the foundation of the ability to create business value from an undertaking. Innovation management in my world means therefore that we identify, capture and protect those forms of IP and intangible assets that form the basis of the value that we derive from innovation.
I love to see the proverbial “light bulb” go off over someone’s head when I answer their typical patent question of “is this patentable?” with the question “why does your business model require you to get a patent on this particular product or technology?” Usually, it takes very little time to determine whether getting a patent is the right business decision at this time, and we can focus the rest of the discussion on how they can improve innovation ROI by building IP and intangible asset management into their processes to have the ultimate result of creating and growing sustainable business value for the organization. My clients invariably ask me “why have my lawyers never asked me why before?” and I just shrug my shoulders and smile.
Quite honestly, I find dealing with the existing model of IP counseling—which is the province of traditional patent lawyers and those who are their clients—to be incredibly frustrating. Under the existing economic model, outside lawyers only get paid if they do something, whether it creates business value for the client or not. In reality, however, very few innovations require patent protection to achieve the desired financial return. When a patent is needed, the business team needs to know this at an early stage and how patent coverage should be designed to prevent competitors from knocking off the innovative solution—not just the specific invention that makes it to the market. Whether and what kind of patent is needed in a particular innovation situation is knowable, but few business people feel they possess the skills to make this decision themselves, and so they cede IP-related decisions to their lawyers, who don’t normally get paid for saying “no.” Time and time again, I find that lawyers—whether they are outside or inside of an organization–capitalize on the common misconception that innovation cannot succeed without IP protection, and they are the people who hold the market power to get their message out there. My contrarian message is: not getting a patent on an innovation is a patent strategy if you are making the decision for articulated business reasons, you just need to know how to make the right choice.
I have recently become General Counsel and Chief IP Strategist for a start-up company. The technical team—a group of outside thinkers who refused to accept the status quo of electrical engineering community–has spent 10 years re-visioning the way we supply power to systems. As one “small” aspect of this technology, we will allow you to fully charge your smartphone in just a few minutes with no generated heat. When people find out how we are accomplishing this, the full scope of the opportunity will be apparent, and others will want a piece of the action. Prior to deciding what our invention really is, we are working with innovation professionals, financial experts and business strategists to understand how others will view our technology. With knowledge of the full scope of our innovation prior to deciding what our “invention” is, we will develop a patent strategy that allows us broad protection, as well as sets up a strong technology development and licensing strategy. It is exciting to be involved with a game-changing technology at such an early stage. Our team wants to change the world, but we also think we should be compensated for doing so. Accordingly, I am committed to ensuring that my company gets paid for the full value of the innovation that we will bring to the marketplace in the next few years by designing and implementing IP protection that “makes it cheaper for someone to go through us than around us.”