As I continued thinking about the IP lifecycle, something occurred to me. Most companies put a lot of energy and money into creating and acquiring intellectual property. Not nearly as much time and effort goes into IP that is at the end of its life.

That's unfortunate since maintaining old IP costs money. It also represents a lost opportunity for one last revenue stream from an old standby. In a sense, selling IP is like the old garage sale adage "one person's junk is another's treasure." And like selling something at garage sale, you have to know you want to sell it, know how much you want to sell it for, and understand its value to someone else.

The hard part about IP divestiture is that so many constituents are involved, and there can be a lot of emotion involved. For the inventor, some of themselves is tied up in the IP. If their name is on the patent, they may not want to see another company, especially a competitor, using it. If the IP has been part of a very successful product, there may be an overinflated sense of its value.

Unlike a lot of IP decisions, the simple, gated workflow doesn't really apply. Decisions around end of life divestiture are more collaborative. They require that the constituents add their knowledge and express their views about the IP. Otherwise a true picture of the market, value, and continued internal usefulness of the IP will not emerge.

There are a number of well known techniques that can help drive this type of decision. Meetings are one way. Unfortunately, scheduling the number of constituents can be a challenge. People often don't have all the information they need when they come into the meeting leading to tabled decisions and more meetings.

Collaborative software, which allows participants to review and comment on the IP in question, is a good tool to use assuming it's secure and safe. A method of voting on IP also helps. By using standard survey methods, the attitudes of the constituents can be divined and better decisions made. Sometimes, thematic analysis of comments is needed since not all information is easily quantifiable. No matter what methods are used, typical top down decision making is not adequate.

Divestiture decisions are complex and require complex interactions between knowledgeable people. Since InnovationQ strives to be a complete IP lifecycle product, it has different collaboration and decision support features. IP.com continues to address the entirety of IP management and not just the legal aspects.

As someone who worries about how to leverage intellectual property, I see a lost opportunity. Management of the entire IP lifecycle is necessary to get the most leverage from these important assets. This includes managing the end of life.

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Managing to the Changing Value of IP

Traditionally, IP management software tools have not dealt with managing IP value. They have, instead, focused on managing the tasks involved in patent prosecution and licensing. These are the type of activities that docketing and licensing software systems have focused on for years.

This is a limited view of IP management. While managing responses to office actions and processing annuities is important, it is only one part of the whole of IP management. It ignores the majority of IP management functions that are necessary to discover, secure, and monetize IP in a corporation.

The emerging view of IP is that of an asset whose value changes over time. In the beginning, IP may have very little value. It is an unformed idea or something scribbled on the back of a napkin. As time goes on, the IP gains in value. Finally, as the technology derived from the IP becomes old, the value of the IP declines.

 

 

An IP lifecycle based on value would encompass four broad stages. First is the generation of the IP. At this stage there is only potential value. Capturing and securing IP is important to insure it's future value. In other words, even IP in the process of forming should be treated as having value in order to insure that it can be monetized later.

IP gains in value when it is identified as IP. This usually happens though a series of processes such as IP Audits or Invention Disclosure and Review. Not only is the IP itself identified but the true value of the IP is recognized and decisions are made as to how to monetize it.

The third phase, monetize, is where traditional IP management techniques are usually employed. At this point the value of the IP has to be secured through legal processes. Patent prosecution, freedom-to-operate, and similar processes are used to protect that value. Eventually, IP becomes fully realized as a product or through licensing, creating revenue for the inventors. Releasing the IP into the public domain is also a way to monetize IP by providing competitive advantage or enhancing goodwill and technology leadership.

Finally, IP gets old. It begins to lose value as the technology, products, and brands based on it get old. Even trademarks, which tend to remain useful for long periods of time, can get stale and diminish in value. In this end stage, decline, value diminishes until it arrives at a terminal point. During decline, the trick is try to balance the remaining value of the IP against the cost of maintaining it. Decisions need to be made that may lead to divestiture of IP through sale or releasing it into the public domain.

A lifecycle approach to IP management recognizes that IP is a ubiquitous asset within a corporation. It manages that asset in accordance with its value. Tools that manage the IP lifecycle cannot focus only on the legal tasks of patent prosecution. Instead, support for a wide range of activities that help to identify, secure, monetize, and manage the declining value of IP are necessary in order to maximize that value.

InnovationQ, IP.com's IP management software, was built with this philosophy in mind. There are many tools that manage tasks for attorneys. InnovationQ manages the lifecycle of IP. It secures IP early on and efficiently manages processes throughout the lifetime of IP assets.

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 There is little doubt that we are looking at some tough times economically. No matter what the two candidates for the American Presidency will or can do, we will be in the midst of an economic downturn. The chief reason for this is that consumers can't buy a lot of goods. Credit is tight, jobs are being shed, and most importantly, people are frightened about the future. This doesn't mean that consumers won't buy any goods. It does mean they will be much more selective about what they will spend limited amounts of money on.

A typical business reaction to a downturn is to cut, cut, cut. While cutting the fat away is good, cutting into innovation is the beginning of the death spiral. Businesses are no longer competing amongst similar businesses to sell similar products to consumers. They are competing against all other purchases. This is the time to actually invest in innovation, to invest in creating compelling goods that people will buy instead of something else.

"Compelling" is the key word here. If consumers don't feel drawn to new products they will make buying decisions based on price or someone else's compelling product. This is why innovation management is more important now than ever. Coming up with good ideas is hard enough. Knowing that they exist, where they exist, and making decisions about them is even harder. Companies abound with good ideas. Most are just buried somewhere so that product and brand managers can't find them.

This is one of the key reasons that InnovationQ exists. By helping scientists and engineers to collect, organize, and share ideas, InnovationQ allows for greater creative output. Even better, by allowing others to find these ideas and make decisions about them, good ideas percolate up to the where they can become useful product features.

At any point in time, product innovation is important. In a down economic climate, where differentiation and value become the guiding lights for consumers, it is even more essential. InnovationQ can help drive innovation and better products.

Continue Reading...

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There has been a lot of tension in the computer industry about standards and intellectual property. Some of it has been fueled by the recent US Court decision favoring Rambus (April 2008) over the Federal Trade Commission. In short, Rambus has contributed patented intellectual property to the DDR SDRAM standards but did not reveal that fact to the standards committee. After the standard was ratified, Rambus sought license deals from makers of DDR SDRAM. It has also filed a number of lawsuits related to the IP contributed to the standard.

We cannot stop developing standards. Without standards, the market for products becomes smaller and everyone makes less money. Imagine a world where there was no standard for house current or batteries. Developing consumer electronic products would be nearly impossible. Without the standardization of major computer components, the cheap PC, cell phone, and music player would not exist. Standards are a vital part of any type of product. There is plenty of room in technology-based products to innovate outside the standard. Apple has to adhere to many different standards in its iPhone yet has come up with a truly innovative product.

Many people in the computer industry want to blame Rambus for being deceptive. I can't say what Rambus' intentions were. However, the fault for this type of fiasco falls firmly on the shoulders of the standards bodies. There are a few simple steps they can take to avoid these type of problems. These should become a standard for standards bodies.

Insure Unfettered Access to IP In Writing

It seems the most obvious thing to do. Insist that everyone who participates in a standards body sign an agreement to only contribute information free of IP entanglements or to license the contribution for free. That way no one does anything sneaky. At the very least, members should agree to reveal any contribution that might be based on encumbered IP before it is accepted by the body. Either members will sign it and the standard is free and clear or they won't and the standards body will know something is up.

Do What Companies Do

Companies worry about their products being encumbered by patents held by others. To combat the obvious negative effects of encumbering patents, they routinely perform prior art searches. Typically referred to as Freedom to Operate and Patent Clearance searches, searchers look for any patents that may pop up and cause problems later. Standards bodies, whose "product" is a standard, should do the same. Even getting licensing agreements up front is not enough. Licensing agreements amongst participants only cover the participants. There is no way of knowing if patents or patent applications are lurking out ready to bite the industry in the leg without a professional prior art search.

Remember, major standards bodies are not shoestring operations. They are sponsored by large multi-national corporations and governments. They can afford this small amount of insurance.

Active Management of IP

A standards body also has to actively manage the IP under their care. Whether it is owned by the body, in the public domain, or licensed by individual members, every submission needs to be tracked against features of the standard. There needs to be periodic checks of defensive publications, patents, and patent applications to insure that no member is violating the agreements of the organization. It is also a good idea to check if patent applications are filed by non-member companies to see if something has happened that would threaten the emerging standard. This is especially important when there are competing standards bodies.

Member companies should also track their contributions to standards against their own IP portfolio. Period checks of the portfolio against agreements that govern those submissions is also a good idea. Otherwise, they may attempt to patent a technology not realizing it has already been contributed to a standard. It is also why processes must be in place to insure that companies contribute openly only what they indent to. It is not unusual to have an engineer expose important IP in a standards meeting inadvertently. Companies need to track what their own people are doing in standards bodies.

These are pretty simple ways to avoid standards encumbered by patents. IP.com can help do this through its InnovationQ software solutions, Patent Search Services, and Prior Art Database.

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A lot of companies rely on stored metadata to establish the dates of prior art. That is a potentially dangerous strategy. Since metadata is easily manipulated by a person of moderate technical ability, it is unreliable for proving dates.

Metadata is the special information stored within files, such as word processor documents, that describe the data in the file. For example, a word processor file may include an embedded creation date, keywords, and authors' names. All files in Windows and Linux (as well as most other operating systems) also contain metadata maintained by the operating system. When someone looks at files in a folder in Windows, they can get a view that shows much of this information including the last date the file was modified. This would seem, on the surface, to be a good way to show that a file was created at a certain time and data, as well as when it was last changed.

However, all of this information is readily accessible from most various programs and within applications. In Microsoft Word the Author of a document can be changed from the File | Properties menu. There are many simple applications that can change a date stamp, not to mention some simple tricks. For example, change the date on a computer to sometime in the past, create a new document, cut and paste the contents of a recent document into it, and save the new document. When the computer's date is changed back to the current date and time, the document will have a date in the past as its date of creation and last modification.

A lot of faith has been placed in the immutability of EXIF information in graphics files. This is the metadata that digital cameras place in the files they create including a date stamp. Lots of other graphics applications store data like this as well. Many feel this is secure metadata because major applications such as Photoshop refuse to change it directly. Not all applications are so well behaved and there exists techniques one can use within Photoshop to fake a date. Deke McClelland in his (sometimes profane, so be warned) video blog shows just how to do that.

All of this points to the main reason that IP.com offers its Legal Safeguarding Service as part of InnovationQ. Computers cannot always be trusted to maintain dates. This can call into question when prior art was created. With the Legal Safeguarding Service and InnovationQ, documents and dates are verified by a third party and published on paper without revealing the contents of the documents. To change this requires changing not only information stored on a computer, but information stored with IP.com and printed in booklets that are sent to patent offices throughout the world. That is much harder to fake and hence easier to trust. Trust LSA, not your own computer files to establish data as prior art.

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At the recent PharmaBiotechIP summit, a speaker discussed a problem that really struck a cord with the audience – that the language used in FDA regulatory filings can have a serious impact on patent applications. In communications with the FDA, the authors of regulatory documents like to use words such as “conventional”. The term “conventional” helps to assure the FDA that there is nothing unusual for them to worry about. I can see how this makes sense. If something is conventional it is not unique and hence in need of additional scrutiny.

Therein lies the problem for the intellectual property side of the house. We want IP to be unique, innovative, and special. In fact, we want it to be so special that it would not have been obvious to other people reasonably well versed in whatever industry or technology that we are dealing with. For FDA approval to go smoothly, you have to declare that the product is, in many ways, like other products. For the patent filing process to go smoothly, you have to show that the product is, in most ways, unlike any other product. If you are a patent examiner trying hard not to award a patent to something obvious, you might think to look at the regulatory filings related to the same drug that a company is trying to patent. If the company expresses the view that it conventional, you can easily read obvious.

This sounds very much like a Publication Clearance problem. Typically, with a Publication Clearance process, a company tries to insure that nothing contained in a technical or scientific publication will jeopardize intellectual property rights. The Regulatory – IP conflict is very much the same. Companies need to insure that what is written in a published document, in this case an FDA filing, does not inhibit the ability to gain patent protection later. A well thought out Publication Clearance system, modified for the particular workflow of regulatory filings, should help to provide this level of oversight. Like all publications, the document has to go out on time but needs to be reviewed to insure that it is correct in many ways.

So, why continue to risk patent approvals because of the wording of an FDA document? An easy solution exists by way of the same process necessary to release other publications.

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Whenever I travel in Asia outside of Japan, I get asked the same question “What are you doing there?” The question always comes with one of two follow up statements. It's either “They don't really have any intellectual property of their own. They just make things for the real innovative companies.” or “They just steal everyone else's IP as well as each others.”

Both the question and the statements are pretty ugly and, even worse, ignorant. Two myths should immediately be dispelled about what is happening in Asia. First, there is a lot more going on in Asia than manufacturing. Second, they care very much about IP, and not just their own.

Myth 1: Asia only makes things for other people.
Ignoring for the moment that Asia is a big, diverse, place that simply can't be painted with the same brush, there is wholesale change going on in China, Taiwan, Singapore, and India. It is true that these countries have a vast, low cost manufacturing base. It is also true that they do tremendous business in contract manufacturing and low-cost services. However, it is no longer the case that this is all they do. Just look at companies like HTC, whose smart phone may give the Apple iPhone a run for the money. Another example is Lenovo, a major producer of laptops computers. Check out Huawei, a huge telecommunications equipment manufacturer just now making inroads in North America. All of these companies are in the business of creating their own innovative products. That means innovation and intellectual property.

Myth 2: They steal IP! They don't want to protect my IP or even their own.
Piracy happens throughout the world but that doesn't make everyone a thief. For example, The Pirate Bay, a bit torrent aggregator, known for their disdain of US intellectual property laws, are in Sweden. Yet, no one would accuse the Swedes of being IP thieves. In fact, people in Asia have the same issues, worries, and goals for intellectual property as the rest of the world. It's only that the people in China, Taiwan, and India came into the game a bit later. Many of legal protections, available in the US or EU are also available in Asia. Some are even better than what we have in the US. They are also investing in infrastructure for managing IP. Companies in Asia are keenly aware that they can't misappropriate other people's IP and expect other countries to protect theirs. That is no different than it is in the US or EU. So, no. Businesses in Asia are just as worried about IP and are as much spending time and money to protect it as anyone else in the world.

All in all, Asia is an exciting environment full companies that are creating really interesting products. Though nascent, Asia is on the road to becoming a technology powerhouse just like the US and EU.

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Over the years I've written dozens of technical articles, blogs, and marketing literature.  Most of what I wrote was reviewed by marketing, engineering, and perhaps sales. My articles have been examined for their ability to carry the corporate message, technical accuracy, and how the pieces positioned products. No one ever brought up the issue of intellectual property. This is not something unique to my experience. Companies worry about the content and form of publications but not the IP that might be revealed in them. When someone does catch some important IP heading out the door it is often by happenstance. It's not so much that companies don't care.

If you bring up the subject of "IP in publications" most companies will sincerely tell you that they are worried about it. Yet despite that, examining publications for IP is not always part of the normal publication review process. On the flip side are the companies that are paranoid about IP in publications. For many, the knee jerk reaction is "publish nothing!" This doesn't work for long since publications are a major part of corporate communications. Are you going to tell scientists that they can't publish a scientific paper? They won't work for you. Just try and shut up an engineer with a good idea for an article. You'll only infuriate him. Marketing has to publish white papers and sales literature so you can't stop them from producing publications. 

The simple solution is a publication clearance process, implemented as a workflow. The process of Publication Clearance pushes the document in front of everyone who should see it including legal counsel, patent counsel, technical and marketing. Publication clearance within InnovationQ also protects the document as intellectual property. It is subjected to the same LegalSafeguarding process as documents in the Trade Secret Management modules. We can even build hooks into docketing or our Trade Secret Management modules to help better identify IP contained in publications before it is too late.

Adopting a publication clearance process is a good first step toward protecting important intellectual property. Having tools to automate this process makes it much easier to live with.

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It seems like every other day we hear about another company losing important data. Just recently (Thursday, January 17, 2008), Iron Mountain announced that they lost a tape with personal information on over 650,000 people on it. Please don't think I'm picking on Iron Mountain. This type of data loss happen regularly. What we hear about in the news are the situations where financial or private information is lost. What we don't hear about is lost or misplaced intellectual property. Companies keep this quiet since it is an embarrassing internal matter that they don't have to broadcast.

Yet IP data loss happens all the time. Flash drives and flash memory provide high capacity storage at a cheap price. Portable USB hard drives of up to 500GB are now available for very little money. This is big enough to house large corporate databases and as easy to lose as a cell phone. Which brings us to personal digital devices like cell phones and music players. These have substantial amounts of storage which often contain more than just someone's tunes or pictures of their cat.

All of this mobile storage creates an enormous IP problem. Most people don't realize that practically anything can be intellectual property. The end result is that almost everyone is, at some point, walking around with large amounts of intellectual property in an easy-to-lose form. Mobile storage also makes it very easy for folks to go over to the dark side and take intellectual property. It's now all too simple to copy large amounts of information and very hard to track when it happens.

The good news is that the only one who gets hurt if you lose your intellectual property is you (and your shareholders). If someone loses 150,000 Social Security numbers then there are 150,000 people at risk outside your company. The bad news is that you lose big. A simple "flash drive accident" may hand your competitor your most trusted secrets, jeopardizing new products, revenue, and reputation.

As bad as the bad is, it can be mitigated. First, make sure that you have copies of everything that might contain intellectual property in a secure location. This way, if you have to prove prior art, you can do so. If you need to prove that the information was taken(misappropriated), rather than accidentally lost,  you can do that too. Second, continuously monitor the landscape to see if anything is leaking. Many folks only survey the intellectual property space when they are applying for a patent. While there are a dozen reasons to do this, finding where your intellectual property is turning up is one of them. Finally, review important information for intellectual property on a regular basis. Not everything is important but you won't know that until you review it. This way everyone will have a better appreciation of what needs to be locked down and can't ever be copied to mobile storage or devices.

This is where IP.com can help. Our InnovationQ, Prior Art Database, and Patent Search Services can, when taken together, help secure your intellectual property, assist in making decisions about what is or is not IP,  and provide you the business intelligence you need when surveying the IP landscape.

Otherwise you might wake up one day and find your that your IP has sprouted legs and walked off.

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"This is not a tool. This is a toy. THIS is a tool!" - Julia Childs, on rolling pins.

Email has had a major impact on business. It's all but eliminated the need to send letters and memos on paper. The ability to have quick, on-line conversations has made e-mail (and it's kin, instant messaging and texting) the model for modern communications. For teams trying to produce something creative, however, it falls short. The issue with e-mail is that it is totally free form, both in terms of information and user action. With e-mail, you can't produce predictable results. You don't know how the information will be organized or even what information you might get. While the ability to write anything has its strengths, e-mail systems usually need to be coupled with databases and other structured information systems to be useful for managing innovation. The unstructured nature of e-mail also makes tracking difficult. From an IP perspective, this means no inherent way to protect prior art.

The failure of email to support innovative processes and protect IP is part of the reason that IP.com has developed collaboration features in InnovationQ. The Consultation feature available in the InnovationQ workflow engine is a form of structured collaboration. Rather than take interactions offline to e-mail, we have introduced a method of interacting  that mimics the freeform nature of e-mail. At the same time, users can tap into the the structure of a workflow and the structured documents attached to the workflow.

This is only the first step. The next version of InnovationQ will have a new Collaborative Innovation module that provides for group interactions within a structured environment. While maintaining the free flow of ideas, InnovationQ will allow those ideas to be tracked and preserved as IP. Just as important, it will encourage users to drive toward a goal rather than flail about in e-mail.

E-mail is great. Without it, most of us couldn't function. It has its limitations though, especially in the innovation process. We need to recognize these limitations and use tools better suited to our purpose. InnovationQ is about innovation. It's the tool to use when you want to accomplish something creative and protect it at the same time.

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