An older attorney once told me that when times are good, companies build up their patent portfolios; when times are bad, they litigate. Given the headlines today, I would say that might be true. We have non-practicing entities (a.k.a. NPEs or Patent Trolls) filing an ever-increasing number of lawsuits, while the smart phone manufacturers and patent holders are pretty much engaged in WWIII with patent suits on multiple fronts around the globe. (Check out my previous post on Patents as WMDs.) This got me thinking. How would Sun Tzu, the author of The Art of War, view intellectual property ownership, the bundle of rights that come along with IP, and the upsurge in litigation? Keep in mind that it was Sun Tzu who said that “the supreme art of war is to subdue the enemy without fighting.”
There are two Sun Tzu quotes that actually hang on the bulletin board in my office. They speak to how I view intellectual property, and the mission of my company, IP in focus.
1. “If ignorant both of your enemy and yourself, you are certain to be in peril.” I guess this quote is the opposite of the often-voiced quote “Ignorance is bliss.” Let’s be honest. Ignorance is only bliss until what you don’t know bites you in the behind. What you don’t know can hurt you. What you choose to ignore can cost you literally and figuratively. (Google, the multi-billion dollar patent auctions, and the purchase of Motorola Mobile for $12.5 billion are great examples that come to mind.) This quote reminds me that IP owners must actively manage risk as part of a comprehensive intellectual property strategy.
Risk can come in many forms. Your competitors, employees, contractors, vendors, strategic partners, and outsourced manufacturers are all sources of potential risk. At any given time, one or more of these groups can be the ‘enemy’. You must understand your enemy and the risk your enemy presents to you, then take steps to reduce your exposure to that risk. Without this understanding, you can’t possibly have a strategy that meets your business needs. Without a meaningful strategy that takes into account your risk, your intellectual property rights are certain to be in peril.
2. “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” So many bad tactics, so little strategy! Having an IP strategy doesn’t do you any good if you don’t know how to make decisions. Making decisions in a vacuum doesn’t help your company achieve its business goals. When you have too much of one and not enough of the other, the only thing you can rely on is luck or your war chest to bail you out. You must have tactics that make it possible to achieve the goals set forth in your strategy.
The mission of IP in focus is to make sure that our clients have the tactics they need to implement their intellectual property strategy, and achieve IP success. Remember that what determines success is different for every organization. However, I strongly believe that success lies in the intellectual property holder’s ability to conquer their enemy.
With that in mind, I will leave you with one more quote from Sun Tzu to ponder.
“In battle, there are not more than two methods of attack—the direct and the indirect; yet these two in combination give rise to an endless series of maneuvers.” – Sun Tzu