Intellectual property defined

Wednesday, 06 February 2008 08:15 Noric Dilanchian

This post continues our series on terminology. The series so far has definitions of business model, commercialisation, and innovation.

"Intellectual property" is a legal term. Intellectual property law is a loose category, with variations country by country. It includes copyright, confidential information, registered trade marks and patents. A longer list for Australia is set out at the end of this post.

You'd think intellectual property is about property. However, the word "property" is troublesome for two reasons. First, it makes people think of things, not legal concepts or legal rights. Hence, in general chit chat, intellectual property is regularly talked about as if it is a thing.

Second, confidential information, is not property in a legal sense in common law jurisdictions such as Australia, New Zealand, Malaysia, Singapore and the United Kingdom.

Here's the practical takeaway point. As IP is not a thing, intellectual property rights rarely contain a silver bullet. A win in court or commercial negotiations is generally more likely the more IP bullets (ie IP legal rights) you have in your gun (if one of them happens to be silver then all the better).

You'll improve your IP strategy if you think about your IP as a bundle of legal rights you own or control (or at least aim to  own or control). Work on constantly improving the quality of those IP rights. This practical point is amplified in The joy of IP strategy - top 10 questions list.

The following indented text illustrates the point that IP is about a bundle of legal rights, not things.

People say "Company X's intellectual property is very valuable." However, in the legal context it would be better to say "Company X's intellectual property rights are of very high quality, making them very valuable."

Higher quality intellectual property rights can arise from a combination of good decisions. We can work with you to achieve results by impoving your IP rights using - IP audits, IP registration, IP registers, IP strategy, IP policies, IP training, coaching for IP negotiations, IP record keeping and documentation, IP licensing, and IP commercialisation. As this list illustrates, there are many areas for which decisions have to be made.

Specific ways in which IP rights improvement can be achieved include:

• if there is a clear chain of title for copyright assets (eg records and documents linking the first creator of a work to subsequent owners),
• if there are trade mark registrations worth having (eg a word trade mark rather than a registration of only a busy label or logo), or
• if relevant IP contracts secure for Company X broad and long term legal rights.

Building on this legal logic, capital markets attribute huge valuations to IP assets. To illustrate, we could say that so far Apple Inc's intellectual property rights to the iPod appear to be of very high quality.

We could also say the same possibly about the Canadian company, Research In Motion Ltd, owner of the Blackberry phone. To better secure its claim to high quality patent law rights for the Blackberry in 2007 it paid patent licenser NTP Inc US$612.5 million in an out-of-court settlement of a dispute.

The point is that broadly speaking the categories of intellectual property law have frameworks which tend to focus on creating and improving legal rights, rather than things.

Briefly, in Australia the principal categories of intellectual property and their subject matter are set out below.

• Confidential information - information given in confidence, sometimes known as trade secrets.
• Copyright - various types of data including text, photos, graphs, sound recordings, films, broadcasts and computer programs.
• Registered trade mark - a sign adapted to distinguish products or services. In Australia under trade mark law the sign may comprise a word, logo, design, sound, shape or scent.
• Unregistered trade mark - often comprises a business name, symbol, sign, logo, brand or title.
• Patent - an invention, typically a new substance, a new process or non-obvious solution to an existing problem or the creation of a new product.
• Registered design - distinctive features of shape, configuration, pattern or ornamentation applicable to an article.
• Circuit layout rights - stencils or masks used to build or etch successive layers in the making of an integrated circuit.
• Plant breeders rights - new plants which is defined to include cultivars, clones, hybrids and strains.

As we've noted "intellectual property" is a legal term. Contrast it with "intellectual capital" which is a management term, and "intangible assets", an accounting term. This alphabet soup of terminology is discussed further in How to say "intellectual property" in three languages.

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