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Joseph Codispoti, Chief Intellectual Property Counsel, BEDGEAR
All the different flavours of intellectual property rights – patents, trademarks, copyrights, trade secrets, etc. – are tools of competition. They are meant to give the owner the exclusive right to exploit the underlying intellectual property or to deny another person from using it. So powerful are these incentives that billions of dollars are spent annually to acquire, maintain and enforce these rights.
But all of the heat and fury accompanying that activity is later met with a cold and quiet truth that the vast majority of the intellectual property rights (and the intellectual property itself) is put on a proverbial shelf, never to be used in any constructive way by their owners. This is not a warning or suggestion to make a hard stop on securing such rights. To the contrary, there is no real substitute for these tools, and, it is commonly understood that intellectual property forms the most significant part of any company’s value.To be sure, there should always be a cost/benefit analysis of what exclusive rights to pursue, but there should not be any reservation in the idea of securing intellectual property rights. No, the challenge is to find and implement (like for its distant cousin, real property) the highest and best use of any intellectual property that would produce the highest value for it, regardless of its actual current use.
Intellectual property rights are trade-able, procedurally in contracts, and substantively for other assets or rights
Consider that over half of all U.S. patents (5 million) have issued in the last 30 years and, more remarkably, that one million of them have issued only within the previous 3 years. It is an arms race. It is an arms race with the characteristic driving psychology that more is better and, chillingly, more is necessary. Luckily for most, constricted budgets, changing personnel, and shifting priorities act as natural brakes to joining the arms race crowd over the long term. These considerations take you away from the cliff edge of wasting time, money and resources. They don’t answer, however, the policy and strategic questions of how to get the highest and best use of any intellectual property and the associated rights.
So, what is a person/company to do? What are the options?
At the heart of the answer are three acknowledgements: one, that intellectual property rights are separate and distinct from the intellectual property; two, that intellectual property rights have many uses; and three, that the owner may not be the best person to exploit them. Factor in that intellectual property rights have territory and time components, and there opens up various opportunities for getting the highest and best use of any intellectual property and the associated rights.
The standard option to monetize intellectual property rights via licensing or sale is always alluring, but it hangs on getting willing buyers - and if that doesn’t work, sue some hapless group and pry the money out of them. Not every intellectual property right is worth someone’s cash, but there is always intrinsic value that may be equally beneficial to the business.
Intellectual property rights are trade-able, procedurally in contracts and substantively for other assets or rights. They publicize innovation. They recognize creativity. They signal the marketplace regardless of whether or not specific intellectual property is put into service. They are a value-add to associated products and services. They can test and sample the market. They can be given up to persons or the public, for various reasons. Like any tool, you need to know how to use them; proficiency is another matter and, frankly, the real challenge.