Readers, there is still debate about just what may constitute the world’s oldest profession…my experience and study on the matter points to misappropriation (poaching) of the intellectual work product of another, not prostitution as many euphemistically suggest. Having published books, professional papers, 700+ long form blog posts, and as a developer-holder of proprietary business information, to be sure, I have experienced work product poaching!

The word ‘poaching’ today…as conveyed in the title of this blog post is not referencing the type poaching which occurred in medieval UK – European contexts, wherein a ‘poacher’ was one who intentionally, without permission, and with the relevant stealth, trespassed woodland property, usually that held by aristocracy, to ‘illegally’ hunt and kill game. But yes, this description of poaching is indeed akin to what I have argued in numerous other blog posts here, and what I am describing below.

My ‘written work’, i.e., books, blog posts, and professional papers, etc., have been ‘poached’ countless times…that is, my blog posts and papers have been (in part, or in whole) poached by others and reposted or published elsewhere under presumably the poacher’s name without attribution. 

And, my second published book ‘Safeguarding Intangible Assets’ (https://kpstrat.com/blog) on the very day of it’s public release. I found it had already been published in multiple other languages, unbeknownst to me, without my permission, and without any compensation for books sold in those language specific countries.  In short, those circumstances will always piss me off!

Today, and for many years previous, the word poaching has assumed…a new context, aal the taking of others legally held – owned – registered proprietary information and/or intellectual property, i.e., the intellectual and structural capital contents of patents and trade secrets particularly.

Intellectual properties, as readers know…are other forms – categories of intangible assets, i.e., variations of intellectual, structural, relationship, and human capital; so, its worthy of noting again, that…

• …today, and for the foreseeable future, it is an irrefutable and irreversible economic fact that 80+% of most company’s value, sources of revenue, competitiveness, and sustainability lie in – emerge directly from intangible assets, i.e., intellectual, structural, and relationship capital.

I know of no business transaction (buy, sell, license, trade) negotiation that occurs today… domestically, or with a foreign based (nationalized) business, in which key intangible assets are not in play.

In an unknown, but, be assured, not insignificant percentage of…international asset transaction negotiations, there may be a range of illicit – unethical acts and/or negotiating behaviors applied (tradecraft, if you will) which serve as preludes to – methods for poaching specific (desired, sought after) proprietary intangible assets.

The sought-after intangible assets, which may be registered intellectual properties…are frequently combinations of intellectual – structural capital belonging to the other party are what’s necessary to achieve a successful (lucrative, competitive) business transaction outcome.

Here, the buying – licensing party’s negotiating prowess…lies, at least in part, on acquiring and lucratively – competitively exploiting valuable insights, perspective, experience, and already proven know how, etc., of a product or service for perhaps the relatively meager price of a Venti coffee at a Starbucks. 

So, the primary target of ’proprietary business information poaching’ today…takes the form of acquiring the underlying – foundational intellectual, structural, and/or relationship capital ala intangible assets, which were developed by and belong to the seller and exploiting – applying same for their own (their country’s) benefit and competitiveness.

So, what should – can influence business transaction negotiating teams to exercise…more (the necessary) caution and prudence insofar as defending against the global cadres of sophisticated, aggressive, state-sponsored, and predatory proprietary information poachers, which, by the way, both parties are likely to be operating in the nexus of go fast. go hard, go global.

Arguably, one could suggest, as I have here in numerous posts…that endeavoring to wrap all intellectual and structural capital in conventional intellectual property is no longer a business’s only, or perhaps, best option for safeguarding these types of assets.

In my experience, the prompts – influencers to proposing and engaging in…any business (transaction where key intangibles will inevitably be in play, there is a fiduciary obligation for the seller – licensor to have achieved full operational familiarity and relevance of the aforementioned economic fact, the reason being…

• in growing percentages of business transactions today, intangible assets and their respective intellectual, structural, and relationship capital embodied – embedded in those assets 
• will not only be an integral part of the transaction and its outcome, but
• will likely be shared and/or transferred under the parameters of the transaction’s contract, with
• some morphing into one or the other parties’ business operational coffers outside the boundaries of the contract.

As every businessperson (should) know…there are risks which attach to any transactional relationship, in part, precisely because proprietary and/or competitive advantage information (intangible assets) will be transferred and shared between parties, and there lies an almostinevitable vulnerability, probability, and criticality!

Risks will materialize, in many instances…when the assets (work products) are sought – intended to be applied – exploited by a prospective buyer for purposes outside or beyond the contractual relationship. In other words, some, all, or specific intellectual and/or structural capital will ultimately be used by or provided to third parties to benefit them economically and/or competitively to the detriment of the holder, i.e., selling – licensing party. 

My own experiences in these matters are sadly disturbing, i.e.,

• some sellers – traders – licensors of intangible assets, (ala intellectual, structural, and relationship capital) especially to international entities,
• are quick to dismiss or relegate the realities of ‘proprietary information poaching’,
• as merely constituting another (inevitable) cost of doing business in a go fast, go hard, go global business transaction environment, which are increasingly knowledge-based and information-driven, and
• wherein increasing percentages of transaction value and projected (anticipated) sources of future revenue and competitive advantage (from a transaction)
• will evolve directly from the intangible assets in play,
• because each business is more likely to be intangible asset intensive and dependent, which is rapidly becoming the norm!  

I’m reminded of a large, U.S. headquartered, multi-national computer manufacturer… whose vice-president of operations announced, some 10+ years ago, that, upon deciding to build multiple manufacturing sites in other countries…

• the company ‘guesstimated’, with good cause, that 25+% of the company’s intellectual property (proprietary know how and competitive advantages) would be irrevocably lost (infringed, misappropriated) during the relatively brief (3-5 year) life cycle of these newly established manufacturing sites, and
• given the relatively high probability (vulnerability, criticality) this ‘estimate’ would come to fruition,
• the outcome is far more than a mere transactional cost of engaging in business globally or endemic to intangible asset intensive – dependent businesses.

At minimum, these can be very costly understatements!

The consequences (criticality) attendant to the risks of proprietary business information poaching…which can occur at any point during or subsequent to negotiating a transaction (sell, license, etc.) in which intellectual – structural capital is singularly dominant…

• can obviously be significant and long lasting, if not irrevocably terminal for the growing number of research-based startups which are singularly focused – dependent on the narrow parameters of knowledge and know how, i.e., intellectual and structural capital, ala, intangible assets.

Insofar as remedies are concerned…the option of a business becoming isolationistic, i.e., not share or transfer proprietary business information under most any circumstance, is obviously not practical, that is, if a business wants to remain a going concern and be successful and profitable.  

However, if management teams and boards exercise prudence upfront…during the transaction proposal and contract negotiation periods, relative to what, if any proprietary information can – absolutely should not be shared, transferred, etc., with transaction partners…

• is as important as is the management and oversight of contractual business (transaction) relationships. 
• the goal of course, is, at the end of the day, 
• sustaining relevant control, use, ownership, value, and materiality of the know-how assets before, during, even after an asset transaction has been successfully negotiated.  

(In addition to my 25+ years of experiences, study, and field research in these matters, this post was additionally inspired by the work of Clemons and Hitt in their paper titled ‘Poaching and the Misappropriation of Information: Transaction Risks of Information Exchange.)

Michael D. Moberly  St. Louis May 14, 2019 [email protected] the ‘Business Intangible Asset Blog’ since May 2006, 650+ published (long form) blog posts, ‘where one’s attention span, business realities, intangible assets, and solutions converge’.

Readers are invited to explore other posts, video, position papers, and books athttps://kpstrat.com/blog