Dilanchian Lawyers & Consultants
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Stone_tool

Intellectual property is not a thing

Speaking in workshops and seminars I've often posed a puzzle to wake up the audience. I've asked: "What is the most powerful thing in the cave of a cave man when he skins a freshly killed beast using a stone tool?"

Most guess that the most powerful thing must be the stone tool. Few point to the one thing that helps the cave man know where to hunt, what to hunt, how to skin and how to fashion tools to help in all aspects of survival.

That most powerful thing is the cave man's brain.

The word "thing" is the problem. Our senses, our language, our way of thinking, and most of our consumption habits are fixated on things.

We don't get as excited about buying or improving skills, processes and know-how. It applies in law too, clients are too often happy to pay for a pile of paper to be prepared than training on how to do it themselves, repeatedly, and more productively.

Yet it is not tools and things that are the greatest stores of value. It is our know-how, which of course helps us use tools and things effectively and productively.

I often refer to the cave puzzle. The stone tool is my metaphor of how people typically think of intellectual property. People think too often about intellectual property as if it is like the stone tool. It is and it isn't.

Over 25 years I've heard comfortable commentary about intellectual property fixating on it being a thing, like a stone tool.

Stop! It's time to feel uncomfortable. Yes, you can think of the following as a thing - a patent, a work protected by copyright, a trade mark registration, or even an unregistered brand.

However, it is more powerful to think of them as claims to legal rights which are constantly in a process of refinement. Refinement here assumes that development has been finalised. The key is to apply refinement. For this they all require the modern cave-person's brain.

What makes intellectual property particularly powerful is to not think of it as a thing, instead apply a constant process of refinement, transformation and conversion. This is especially so with the most under-appreciated form of intellectual property - confidential information or trade secrets.

As a lawyer for a trade mark registration or a patent registration and you may get those things. To get even more, ask a higher level question such as: "If we get this trade mark or patent registration thing, advise me also on how we might apply it in my business context to make money or add value using it." This question entails asking about things as well as processes.

Process involves refinement, transformation and conversation to feed a myriad of creative, technical and business decisions. Call (02) 9269 0229 for a conversation about how it might be done for your intellectual property.

For example mediocre intellectual property not going anywhere can be transformed and converted into revenue by effectively applying to it a suitable business model. To illustrate, it may be how to use it in the following collaborative arrangements, each of which can be established by drafting a set of appropriate contracts (something we also specialise in):

  1. Licensing - licence the IP to others
  2. Distributorship - hand out distribution agreements for others to be vendors of your IP
  3. Joint Venture (contractual or incorporated) - put your IP into play with the resources of others
  4. Franchising - box your IP into a franchise agreement and engage others to partner with you
  5. Strategic Alliance - share your IP with others in return for a strategic benefit back to you

Each of these collaborative arrangements involves adoption of processes and procedures putting the heat into getting a return from activity rather than an idle thing or tool waiting for a brain to use it or someone to buy it.


Graphic: 4,500-year-old ax from the Neolithic Liangzhu culture of ancient China.


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