Intellectual Property Capture
Written by Ben Esplin
Recently, a founder for whom I have the utmost respect made a remark disparaging a comprehensive intellectual property strategy as inhibiting growth for his company. As used here, I take “growth” to mean the proliferation of a service offered by this founder’s company. If “growth” means growth in revenue, the statement is absolutely indefensible.
Assuming growth refers to use or implementation of the service, the logical flaw in the founder’s statement is this, a technology company’s growth cannot be maximized without at least one aspect of its intellectual property strategy being intentionally fixed. On the other hand, this type of growth is ambivalent, at most, with respect to the rest of intellectual property strategy.
In a hypothetical thought experiment in which we maximize growth in use or implementation of a service offered by a company, it is a necessary condition that the company not restrict the use or implementation of the service in the furtherance of its rights to its intellectual property. That is, the company’s intellectual property rights would not be monetized in any way, as such monetization would act as friction against the growth our experiment maximizes.
I propose this is the only aspect of intellectual property strategy that can be tuned to meaningfully account for supporting this definition of growth. However, there are myriad other aspects of an intellectual property strategy. For example, forming a comprehensive intellectual property strategy would include “capturing” intellectual property rights for the company. By “capture,” I mean (a) identification of ingenuity within the company and its product(s), (b) consideration of distinct mechanisms in the law for controlling the intellectual property associated with such ingenuity (including registrations, common law rights, trade secrets, etc.), and (c) taking appropriate action to secure and/or enhance intellectual property rights in the innovation based on the analysis performed at (b). Capturing intellectual property rights, for the most part, does not require the captured rights to be monetized, but it may provide an option for future monetization, if overall corporate strategy shifts from maximizing the particular form of growth discussed here.
Perhaps the founder meant the capture process would distract from activities which, generally, facilitate the quality and/or adoption of the service he is attempting to grow. Frankly, it is our job, as attorneys, to make sure the value of any distraction of technical or business talent in furtherance of the intellectual property capture process far outweighs the opportunity cost of the time spent. Full stop.
If you would like to understand an intellectual property capture process for your company, please contact us for a free consultation.