Wednesday, August 26, 2009

Protecting and Maximizing the Value of Intellectual Property in Business

A company is only as valuable as its most valuable assets and these days a significant percentage of a company's inherent value is derived from its intellectual property ("IP").

The steps taken by a company to identify, maintain, and secure its IP will have a major impact on its overall operation, including its ability to attract investors, enter into certain business relationships and transactions, and ultimately command what it deems to be a fair valuation upon a merger or sale of the business.

While it's no surprise that many large companies such as Microsoft, Cisco Systems, Intel, and Apple frequently deal with IP matters as part of their every day business, the truth is that EVERY business regardless of its size, industry, revenue, and lifecycle stage, is likely creating IP and/or dealing with issues related to IP on a regular basis - whether they realize it or not.

It is therefore of critical importance for companies to be aware of IP issues and create cohesive strategies that will proactively ensure that their IP will at all times be properly protected and maximized in terms of its value in the marketplace.

The first step toward creating strategies addressing IP is to identify which types of IP are regularly being created within a given company.

As a starting point toward doing so, here are the four general categories of IP:

1. patents - which protect certain types of inventions and processes (e.g., devices, manufacturing/business processes, etc.);

2. trademarks/service marks - which protect certain designations identifying a source of goods or services in the marketplace (e.g., business/product names, logos, slogans, packaging, etc.);

3. copyrights - which protect the expressive elements of certain types of works (e.g., written materials, images, designs, audiovisual works, etc.); and

4. trade secrets - which protect proprietary information, processes, formulas and systems deemed to provide advantage to a business and treated as strictly confidential (e.g., receipts, business strategies and plans, etc.).

The above categories of IP translate to everyday business in a multitude of ways including without limitation:
a) reports, designs, market research, and other deliverables prepared for clients;
b) the name of a company and its products/services, marketing collateral, logos, the website and domain name attached to a business; and
c) the internal research and development fueling the creation of a company's products, services, and business strategies - just to name a few examples.

With the above in mind, when identifying a company's IP consider all facets of the business, including without limitation, the products and services being offered (including their individual components), the internal initiatives undertaken within a company and the resulting deliverables being created, and the external marketing and outreach efforts being utilized by the company.

Once all sources of a company's IP have been identified, processes should be put in place that enable the company to easily keep track of all such IP being created, including, all IP currently existing (i.e., a company's "IP portfolio"), updates and modifications to specific IP within the portfolio, and new creations going forward which will become part of the company's IP portfolio.

Please see part 2 of my article on protecting and maximizing the value of IP in business

I welcome your feedback on this article.


Joshua J. Spiegel is an attorney with over 13 years of experience and a co-founder of the law firm Horzepa, Spiegel & Associates, PC with offices located in New York City and Houston, Texas. Joshua serves as counsel to a diverse corporate and private clientele on matters related to general corporate, commercial business, employment, and intellectual property. Joshua has extensive experience in the areas of business entity formation and governance, shareholder rights, employment matters, protecting and licensing intellectual property, business development, mergers and acquisitions, and corporate finance.

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