Last summer, a friend of mine told me about a business that for years had placed the oversight of its patent portfolio in the hands of its facilities manager.  Yes, you read that right, facilities manager.  The person who makes sure buildings have heat, repairs are made, and snow is removed was responsible for making decisions on patent filings, and there were very few patent filings.  I was shocked.  For some reason, this company thought that the person who managed their real property was the right person to manage its intellectual property.  How was this possible? 

For the record, this business is a highly regarded, world-class organization.  Their research is groundbreaking.  You see their people on Nova or the Discovery Channel.  These people are smart.  It never occurred to me that they would have anything but a robust patent portfolio.  So how is it possible that these really smart people could do something so dumb?

I was so disturbed by this revelation that I have been haunted by this question.  How could something like this happen to such an organization?  It wasn’t like they simply disregarded IP all together.  They had put someone in charge of it, but why the facilities manager?  Did they really not understand the fundamental nature of intellectual property?  If this could happen in an organization that values their research so much, then what’s going on in other companies where the focus is (gulp) the bottom line? 

Of course, I’m not on the inside so I don’t know how this all unfolded, but from my vantage point, and my limited information, here’s why I believe this happened.  

1.)  Management did not care about intellectual property.  They did not create a corporate culture that valued IP, so nobody did.

2.)  With no one really managing the IP, IP issues fell off management’s radar screen.  There was no squeaky wheel saying, “Hey what about the IP?”  For instance, it never came up during budget discussions because there was no activity.  No one failed to meet goals at review time because they were never set. 

3.) Management just didn’t know what they didn’t know.  The path they were on was put in place a long time ago.  After years of apathy and changes in management, no one really knew what was happening with the IP, and they didn’t really care to find out.  Of course, if IP came up in serious discussion, they could always say we have a policy to cover it and that so-in-so was handling it.  (And they just didn’t have a serious IP discussion for a long time.) 

4.)  Management had no advice from qualified counsel.  (They have a GC.)  There was no one to point out the problem.

In my humble opinion, the blame lies with the management.  The one thing I’ve learned throughout my practice is that to have a successful IP Management Program, the management team must value and support it.  That’s how an organization develops an IP culture.  (Think Honeywell, Microsoft, Apple, etc.)  If they don’t, no one else in the organization will support it.  In fact, without management support, IP simply becomes a line item in the budget, and no one will see any value for the money paid out, even if the end result (i.e., the patent or trademark) is a good one.   

On the bright side of things, the company is slowly making an IP recovery.  Unfortunately, it is not because someone woke up and said we should do things differently, but because they had a costly IP problem.  There’s nothing like draining a bank account to make someone sit up and take notice.   Also, some new, IP-focused members of the Management Team have made some internal changes to improve IP Management, like a new department.  I know they care about IP now, but their fortunes could have been so different if they had just managed their IP better. 

I believe that there are more businesses just like this one, and they need help.   I think about companies that don’t have in-house attorneys to oversee their intellectual property.    I think about companies who don’t know what they don’t know.  Who is in charge of their intellectual property in-house?  Who makes decisions?  How are those decisions made?  Are they getting good advice?  And that makes me think about the fundamentals of IP practice and IP management.  And I know there is a place in this world for IP in Focus.

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