Reimagining Intellectual Property

A wise product leader once told me, “I don’t care how you do it, just give me an 18-month head start.” This request has stuck with me because it provides a good framework for redefining intellectual property (IP). Instead of the traditional conclusion of simply wanting a patent on a new product, we are led to consider any means that will make that product successful. Product success is the goal, not a given number of patents or trademarks. We must use every available tool to reach that goal.

In that sense, IP is anything that gives us that head start or a competitive edge. IP can be a product innovation or a more efficient manufacturing process. It can be a brand name that customers associate with quality and value, or exclusive access to a component or a distribution network, a cost structure that yields a competitive price or the exclusive contributions of industry experts, whether or not they are our employees.

A wise patent attorney once thought to himself, “Patents are not the key to product success,” in a fit of patent heresy. Or at least patents aren’t the key in the short term, or to the exclusivity of other tools. A patent can take three to five years to obtain. Depending on one’s product design cycle, a product can be on the market for years before patent protection is granted. Patents absolutely have their place in providing an advantage, but we need to factor in their timeframes.

While patents protect innovative ideas by allowing patent owners to block others from making, using and selling patented items or processes, the near-term competitive edge must be provided by other forms of IP:

  • Trademark registration protects the use of a brand name or other feature (logo, color, sound, etc.) that identifies the source of a product.
  • Copyright protection covers a tangible expression such as a book, a song or a drawing.
  • Confidential information is protected by keeping it confidential, and by requiring others to keep it confidential if it must be shared. Confidential information that is key to the success of the business should be treated as a trade secret.
  • Exclusivity arrangements are typically established through contracts.

As in construction, we choose the right tool for the job, and most jobs require multiple tools. Our approach should be to use every tool we can to achieve success for a product.

A company gains a competitive edge when it has access to knowledge and resources that others do not. That knowledge and those resources are its intellectual property.