Making money from R&D and intellectual property is based on documents.

I learned this in 1983 on the first day of my first job as Legal Officer for Angus & Robertson Publishers, Australia’s oldest book publisher.

A colleague pointed to three tall and very heavy fire-proof filing cabinets in a hallway. She then said: “The publishing contracts with authors in there are the foundation for the wealth of this company over the last 100 years.”

This post ends with practical suggestions for improving record keeping. I’ll first discuss why it is vital in business to make records (which here includes preparing documents).

This is the second in a series of Lightbulb posts on IP strategy for R&D. In long hand that’s intellectual property (IP) strategy for research and development (R&D). The first in the series was IP strategy for R&D: people first.

A long historical cycle is at work in Australia and countries with similar legal and financial systems. I became aware of this on reading an academic paper on management, which later became a chapter in a book (pictured right) by a UK academic, Christopher D. McKenna.

  • "watchdogs_book_mckenna"Summarising, McKenna noted that in our systems every few years or decades there is a high level legal scare, typically triggered by stock or financial market misbehaviour.
  • Politicians respond to the scare by putting legislation-writing engines into full throttle. New laws impose even greater obligations for record keeping which calls for even more work by accountants, lawyers, consultants and others in business. Naturally business insurance rates rise to pay for the misdeeds of some.
  • In time business revives and confidence returns to markets.

As evidence of this cycle in the United States, McKenna goes back to  legal and market developments following the depression in the 1930s. He then works his way forward to the U.S. Sarbanes-Oxley Act in the current decade. Before its arrival there was the collapse of the accounting firm, Arthur Andersen LLP. This was intimately connected with document destruction by it as an auditor of Enron Corporation. We wrote on this in Regulation overkill comes full circle and later in a paper titled Rethinking Regulation.

In Australia the cycle is illustrated by the introduction in the state of Victoria of the Crimes (Document Destruction) Act 2005 (Vic) and the Evidence (Document Unavailability) Act 2006 (Vic). The first Act amends the Crimes Act 1958 (Vic) and creates a new criminal offence in relation to the destruction of documents likely to be required in legal proceedings. It arrived due to questions about the behaviour of British American Tobacco (BAT) in the case against it by Rolah McCabe, 51, who died of lung cancer before her court case finalised against BAT. Meanwhile the McCabe case continues.

"record_management"Today, in Australia, the level of legislation relating to record keeping obligations is mountainous and mind-numbing. So here is my offer – If you want a short table listing the gist of what a typical business needs to generally know, send me an email and I’ll email to you our Business Records Retention Requirements Table for law in Australia. You can use it to benchmark your practices and systems.

There’s a positive side to the story. If you’ve had the experience I’ve had, you’d realise there’s a very positive side to making and retaining documents. It helps in legal attack action as well as legal defence work.

Clients rarely call us and ask for advice on document retention. They require it however after their misdeeds or those of others against them.

So I’m keen to illustrate the benefits of document preparation and retention. I found vindication recently when I learned that Thomas Edison was a great note taker.  He probably would have liked our accompanying record management graphic.

This inventor’s notetaking helped him become the world’s most famous inventor with apparently 1,093 U.S. patents in his name.

I’ll end with a short list of practical suggestions:

  • FOR BEGINNERS a good book, now out of print it seems, is by Stephen Moss. Hunt it down. It is titled “What you need to know about documenting your business” (Prentice Hall 2001).
  • STANDARDS abound for document management. Get your hands on them to benchmark your systems.
  • HIRE TECHNICAL WRITERS as employees or consultants. They can work on your process and procedures manuals. Yes it will help lower the work for your help desk and improve productivity generally. It will also help reduce legal risks if they work closely with legal advisers. Once you define what you have and begin the job of recording it, you can then turn to information technology consultants to help out in making backup copies of electronic data.
  • AS FOR INTELLECTUAL PROPERTY OWNERS, learn from Thomas Edison, keep lab records, create an intellectual property register and learn how to manage IP assets.

Call us if you have questions on how to implement any of these suggestions.

Noric Dilanchian