I have been in high-tech for nearly 30 years, and while my father and older brother were knee-deep in intellectual property (IP) as IP attorneys, I always played on the IP outskirts in product, marketing, and strategy roles. Early in my career, I thought IP was for the lawyers and engineers to worry about, not me. How wrong I was. As I enter my 28th year in high tech, I am seeing an even increased importance of IP and also observing some disturbing trends that could chew on the foundations it was built, jeopardizing the notion and amount of invention itself. I will be doing a blog series on IP, and this is the first one, intended to be a stage-setter.
You will care about IP sooner or later
Before you do an eye-roll and think IP is for the lawyers and engineers, consider that IP will likely be critical to your business and you may not even know it. As businesspeople, it’s important we all understand IP as every business will be impacted by technology in the next decade. Whether you’re a manufacturer, retailer, service provider, or in transportation, technology will upend your industry, with IP at its core. If it isn’t already, your business will create IP, license it or both, and with technology driving innovation from IoT (internet of things), AI (artificial intelligence), and 5G, you will be disrupted or be the disrupter. I believe that in the future, there will be those who generate IP, and those who will be out of business.
Also, consider that the same system that helped move countries from an agrarian to a modern society is starting to crumble. Historically, prevailing forces for or against the protection of IP rights have swung back and forth, and we are in the danger zone right now. Adding to this is the big change that the big companies are getting bigger and more powerful. Some of these global companies have more money than countries and changes in any system can be fast and widespread.
All these factors could put your IP in jeopardy, so pay attention.
IP blog series in plain English
Over the next few months, I will be writing a series of blogs on IP in a language hopefully anyone can understand. I want to define IP, talk about IP rights (IPR for short), and explain some terminology I have heard a lot recently, like the alphabet soup of SEP, NEP, and FRAND. I want to hit on how and why companies approach IP differently, how IP is licensed and the role of standards bodies, the courts, and regulatory agencies in governing what you can do with your IP, how you can protect it, and what recourse you have if it is infringed.
I realize all this can be quite polarizing so I will try my best to present both sides of the (pro- and against-) arguments in addition to my opinion. Trust me, not everyone is in agreement on IP- some on the fringe believe that everything should be free, open-sourced, and unprotected. I’ll also try to write in understandable language as IP can be very legal, academic, and scholarly. With that, let me dive in. For the sake of the rest of this blog, I want to start first by defining IP and IP Rights.
What is intellectual property (IP)?
There are lots of different kinds of owned property, some “tangible,” like a car we can see, touch, and feel, and some “intangible” that we cannot see, touch and feel. IP is owned, intangible property and is the created by the mind, or intellect.
As I’m in high-tech, I like to think of IP simply as inventions owned by someone. It’s not just inventions though, IP can comprise of what is said or heard (e.g. speech, music), what is written (e.g. books, music), designs (e.g. automobiles), a logo (e.g. Nike swoosh), a recipe (e.g. Coke secret formula) or brand name (e.g. Pepsi), etc. As we saw in the Apple-Samsung litigation, a “curve” can be IP, and in that case, design IP.
How is IP protected?
Tangible property, like a home, is relatively easy to protect and prove ownership. After we close on a home, we receive a title certificate that says we “own it”. A title search is performed beforehand, examining previous owners to ensure no one else has a right to the property. If someone else does have a right to your property, the title search will surface exactly what rights those are, such as a gas utility easement to enter the property to check a pipe, or an electric company’s right to access an electrical pole. Rarely do you have others come knocking on your door and say they own your house. As homeowners, we have the exclusive right to lease our property to another person using a leasing agreement to spell out all the details. If that renter doesn’t live up to the leasing agreement, the homeowner has the right to evict the tenant.
Intangible property like IP is more challenging to protect as you typically can’t see it, touch it, or feel it. Therefore, instruments were created to protect the inventor, in the form of the more familiar “patents,” “copyrights,” and “trademarks.” There are more examples of these instruments, but describing them in this blog may just complicate and confuse. Patents, copyrights, and trademarks provide exclusive rights to the owner, that no one else can have, and therefore the owner has the right to exclude other people from using the invention or design.
In the examples above, an invention like a unique processor architecture could be protected by a patent, a book protected by a copyright, and the Nike swoosh covered under a trademark. Therefore, in the case of the processor patent, just as no one can claim your house as theirs, the inventor can lawfully exclude anyone else from using the patent. Also, like the example of your home, if you have leased out the right to your processor patent and the renter doesn’t comply with the lease terms, you can stop renting and seek damages. If squatters moved into your home while you were gone for a month and essentially “stole” your home for a month, you could sue them for damages; similarly, you could sue someone who stole your patented processor architecture for damages.
IP rights, or “IPR” for short, are more complex than ownership rights of your home, but they are similar in that they’re all valuable property you own, that someone can’t just steal because they’re intangible.
Intellectual property (IP) isn’t just about technology; it’s about music, books, designs, and logos. In technology, IP is becoming more important than ever, as it is the bedrock of invention driving the innovation that is improving lives and disrupting every industry out there. I believe every business will need to create IP, or it will cease to exist in the future and that the IP pendulum has swung back to the side that undermines invention and reduces protections for inventors. In my next column, I’ll go into a bit more detail on IP rights and implications of having weak protections.