Protecting your Intellectual Property

Defining Intellectual Property - intangible tangibility!

In broad terms, Intellectual Property is the intangible possession of either an individual or organisation, but one that in the United Kingdom and in most countries around the world, to some degree or another, is acknowledged as having a tangible value. This acknowledgement takes the form of protection by statute under either or both of Civil and Criminal Law but has also developed through common law and equity.

Legal protection is termed as negative by which is meant that the law can be used to stop others exploiting the owner’s rights without authorisation. It is often suggested that this protection is fiscal since the owner is essentially granted a monopoly by law, but increasingly there is also a recognition of moral rights as represented in the UK for example by the Copyright, Designs and Patents Act 1988 which, amongst other things, protects the integrity of an author’s work.

Consisting usually of unique concepts and/or data, Intellectual Property is, therefore, represented variously in law by a Patented Product or Process; a Trademark; Copyrighted Material; Performing Rights; Database Rights; Registered Designs and even Confidential Information such as Trade Secrets.

Protection Strategies

Professional Intellectual Property Protection strategies MUST contain three major elements:

• Criminal & Civil Law
• Intelligence & Investigation
• Defensive Products & Systems

Each element is important. Those defence strategies that rely simply on one or even two of these elements are likely to achieve less, and may result in the failure to protect the intellectual property rights.

For example, organizations and individuals that rely almost exclusively on the ability of their corporate or external legal counsellors alone to contain the problem are at risk. Without the information and evidence for example, that could be provided by suitable, task-experienced Intelligence & Investigation specialists, the lawyers may have little of a concrete nature with which to proceed. Similarly without the conclusive verification that could be provided by the use of protective (often-covert) authentication products or systems, the lawyers may have less chance of success against a professional defence team in a court of law.

Six principles of Intellectual Property Protection are accepted as representing the ideals of Defence - the “D6” - Deterrence, Detection, Depth, Detail, Depletion and Dollars!

Deterrence

As with most of protective law, deterrence represents the prime objective, but it is difficult to achieve. Proactive, deterrent type, countermeasures aim to encourage would-be-violators at best to refrain from their activities altogether but at least, to persuade them towards other less well-protected items!

Increasingly, it is being advocated by Intellectual Property Protection specialists that the most effective form of Deterrence is “Street Talk”. The public awareness that a company will and does protect its intellectual property rights.

This can only usually be achieved where the three elements of purpose-specific products/systems, comprehensive intelligence-gathering and investigation and “policing”, along with resultant civil and/or criminal prosecution do indeed combine as a unique “package approach”, particularly if accompanied by substantial publicity, to form possibly what may be termed as “The Ultimate Deterrent!”

Detection

Reactive type detection countermeasures depend to a great extent on aggressive, purpose-specific, Information-gathering by Intelligence & Investigation specialists and includes the use of Covert Human Intelligence Sources (CHIS), Database Management, Internet Sweeping, Publications Vetting, Pretext Purchasing, Surveillance, Commercial Analyses, Freight Tracking and substantial Law Enforcement Liaison (in the U.K., usually Customs, Trading Standards and Police).

Depth

Defence must always be in depth, and despite many claims to the contrary, there is no single panacea.

Detail

Countermeasures employed must always depend on the detail of the problem(s) identified specific to the Intellectual Property at risk.

Depletion

Countermeasures employed are also required to be constantly reviewed for ongoing effectiveness and therefore depletion, and possibly frequently renewed.

Dollars

And finally cost-effectiveness or dollar-durability of countermeasures employed is a major consideration but not at a risk to health and safety.

No such thing as a Victimless crime

The general public, often view Intellectual Property violation as a “Robin Hood” type misdemeanour and not as theft. Consequently, promotional avenues (e.g. advertising) to change this perception may also have a significant role to play in any comprehensive countermeasures programme.

IP Protection makes business sense

Intellectual Property Protection programmes involving Protective Products & Systems and accompanying Jurisprudence, quite commonly result in recovery of programme costs in ratios of 10:1 and even 15:1 in some instances.

Where professional, purpose-specific Intelligence & Investigation is added as a third element, this ratio can be dramatically increased to 20:1 and even higher. Indeed in the case of one pharmaceutical company, for example, it was reported that the counter measures eradicated the problem altogether on at least one instance.

Ray Parry from Crimeproofing, specialises in Intellectual Property Protection, Anti-counterfeiting, Grey Marketing.

Links:
Ray Parry, Crimeproofing Ltd, Wiltshire.