Fiduciary Responsibilities To Safeguard Intangible Assets and Intellectual Property Rights…

Michael D. Moberly   July 30, 2008

Decisions related to an organization’s intangible assets, intellectual property, proprietary know how, and competitive advantages are, first and foremost, business decisions, not solely legal processes.

In today’s tightly wound and highly compressed business environment, if those assets are neglected, overlooked, unrecognized, or merely handed-off to legal counsel as potential IP with the assumption conventional (IP) protections, i.e., a patent, a copyright, or a trademark is sufficient to sustain control, use, ownership, and value, then please read further!

Ideas (assets) can mature very rapidly within an organization, and, if not effectively managed, that is, protected and preserved to sustain control, use, ownership, and value, they will, with all too much frequency, meld into open (public/global domain) sources or become unduly vulnerable to compromise or misappropriation.  In other words, competitors (locally, nationally, globally) will acquire and use them.  And, once an organization’s ideas (assets) enter the public – global domain, either inadvertently, unethically, or illegally, most all conventional IP (law) protections are of little, if any, benefit insofar as (a.) recovering the idea (asset) itself, or (b.) fully re-capturing its value.

Fundamentally, IP rights represent a basic social contract between society (government) and the person or organization that creates-develops the idea wherein the public (government) then grants the creator the right to exclude others from using that idea for a specified period of time, in exchange, of course, for the disclosure of its details and ultimately, the surrender of that (property) right, upon expiration of the time period, by allowing it to enter the public domain.  (Modified by Michael D. Moberly from ‘Stealing of Ideas In An Age Of Globalization’ by Pat Choate, 2005).

Of course, the hope is, that by giving the rightful originator/owner, of the idea, a property right for a limited time, while also making public, the ideas’ most intimate details, the general state of knowledge (within society) will be advanced.

Importantly, but often unrecognized, those rights flow directly from a clause in Article I, Section 8 of the U.S. Constitution, ‘to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries’.  This is the legal basis for all patents, copyrights, and trademarks ever issued in the U.S.

Unlike patents, trademarks, and copyrights though, there is no certificate issued by the government to an organization’s idea developers or its decision makers that says, these ideas also constitute your intangible assets, proprietary know how and competitive advantages.  Instead, the responsibility for identifying, assessing, protecting, and preserving the value of those assets (ideas) are fiduciary, that is, they’re solely up to the decision makers in each organization.

Fiduciary Starting Points – What follows are key starting points for understanding an organization’s fiduciary responsibility to protect and preserve those potentially valuable, revenue producing, and future wealth creating assets, i.e., by recognizing:

1.  how potentially valuable ideas and intangible assets actually evolve within an organization…

2.  what intellectual property and intangible assets are, and equally important, what they’re not…

3. why it’s necessary to protect, preserve, and monitor an organization’s IP (and intangible assets) even if a patent has already been filed or issued…

4.  conventional IP enforcements (i.e., patents, trademarks, copyrights) are reactive, not proactive, and carry little, if any, detterent affects today…

5.  how to put in place practices to sustain control, use, ownership, and value (of all ideas and assets) that reach beyond those conventional legal protections!


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