Evolving into the Digital Age: Protecting Intellectual Property
Posted by Jennifer Wolfe on 07th June 2013 in 360 Blog

While society has evolved from an Industrial to an Information Age over the last hundred years, we’re now operating in a Digital world where technological innovations and intellectual property reign supreme. This fast-moving digital environment–including web, mobile and social media–requires a proactive stance on developing and protecting digital innovations as the global marketplace becomes even more competitive and organizations run the risk of losing critical innovations as others move quickly to steal ideas if the opportunity exists.   

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While digital strategy is driven largely by marketing or IT departments, every digital asset of the company is and should be treated and protected as an intellectual asset, but today these assets are  often overlooked.  Consider the long list of marketing or IT developments at your company.  Everything from user interfaces, apps, social networking functions, personalization options on web pages, subscriber perks, wi-fi offerings, e-commerce solutions, bridging offline and online experiences and new products and services related to digital activity result in digital assets that an organization deploys.  But, are you taking the next step to protect them or leaving them out in the open to steal?  Worse, are you infringing on someone else’s intellectual property (IP)?   

Innovations at Lightening Speed – Are You Giving It Away?

Today, digital assets can be protected by utility patents, design patents, copyright law and trademark law. Typically, as these innovations occur at such a rapid pace, they are not captured and translated into protected digital assets.  Further, as the use of digital strategies is exploding and the creation of digital assets is a relatively new concept, most organizations have yet to build a formal business case and required methodology for protecting these assets.  Compounding the issue, much of the innovation work is done in collaboration with outsourced vendors in marketing and IT, often in a vacuum, so there isn’t a legal or other IP advocate to even ask the question: “Should we protect this?”.  Finally, much of the technology used to develop these innovations is often open sourced which creates an additional layer of confusion and often one that the legal team won’t touch.

The world is beginning to change in response to protecting their digital assets.  Patent trolls have largely emerged in the digital and technology space attacking companies from Starbucks to Cisco for wi-fi offerings, web functionality and what was previously considered open territory for marketers and web designers. And, these trolls are finding loopholes and great financial gains. Today, the trolls monitor major innovative initiatives by world-class organizations and copy and develop their own innovations around successful ones, improve them, and then ultimately file a new patent for it.  And then in a crazy twist, they send these same organizations a cease and desist letter and ask for a license fee.  Why aren’t organizations protecting these same assets to defend themselves and even use them as additional sources of revenue?

Building and Protecting a Digital IP Portfolio

Most companies need to start by identifying the pipeline of ideas and then turn the right ideas into valuable assets.  The innovation pipeline of digital assets is likely already alive and well in most organizations but they aren’t tapping into it.  So, the first step in building a Digital IP Portfolio is to audit where that innovation is occurring.  Understand when it is outsourced to vendors and assess whether it should be retained, shared or given away.  Once you know where the innovation is occurring, it’s time to funnel it into an IP evaluation pipeline.  At that juncture, an IP business strategy team (comprised of IP strategy experts, IP lawyers, business managers, IT managers and marketers) can evaluate its potential use and strength.  Is it a good defense play against trolls or other competitors?  Is it something you can license to others?  Is it something you just want to ensure you have and your competitors don’t? By assigning values and business goals to all of these assets, you can then channel them into a protection process with budgets and clear return on investment goals.

And, the importance of having a multi-disciplined approach cannot be overstated.  Generating valuable digital assets is not just a legal or IP function, it requires understanding and contribution from other facets of the company that can identify value proposition and weigh in on risk/reward.  Digital is new and evolving and critical thinking about its value proposition is essential. Many digital assets are not worth protecting if it won’t last beyond the next fad.  But others are.  That’s why Facebook, Google, Adobe and others have become some of the top patent filers in the world.  They file for much more than just devices and consider every innovation a potential asset both offensively and defensively.

Once digital assets are channeled into protection they can then be redistributed back out to spur innovative thinking and evaluate licensing or leverage potential.  While many companies don’t see themselves as technology companies, they are quickly becoming so with their digital platforms.  From retailers to entertainment and consumer goods, soon all companies will be a digital or technology company to some extent.  If you don’t own and protect those assets, someone else will and use it against you.  The time is now for savvy IP and technology professionals to identify an untapped resource – their digital assets.