Dealing with Devilish Detail

Often said, “The Devil’s in the detail” is a popular saying without a certain author, though Wikipedia says Gustave Flaubert is the author of the “earlier”, and more positive, “the good God is in the detail”. The “Devil” is more often applied, even by professionals who know their way, to the arcane and obscure details of the law and practice of intellectual property. Long and hard training in tortuous and tortured legal concepts gives IP professionals valuable skills, though explaining them and applying them can be tortuous in itself – “the Devil is in the detail”. To add complexity on top of complexity, the landscape of IP, even the underlying legal bed rock, is constantly shifting.

A good example, is a small company I worked with recently, which had taken the time and made a reasonable effort when it was founded to capture a clear and relevant IP strategy that was going to help make its business work. The IP strategy had contributed to several years of business success and had the prospect of continuing to do so, but the shifting IP landscape, in this case court decisions in the US about the criteria for obtaining in injunctions in patent litigations, meant that reconsideration of the IP strategy was not only wise, but essential. So, we worked, brainstorming, arguing benefits and risks, exploring options for developing the company’s IP strategy. The work will take several rounds of development and refinement before a revised, enhanced strategy is developed and deployed using the company’s existing IP assets supplemented in all likelihood with a new range of assets, chosen to support new strategy elements.

All too often companies, if they address IP strategy at all, will create some superficial policy at start up and fail to revisit it, let alone to consider whether the IP landscape warrants a strategy review. As a result companies often create IP assets which while valuable are not precisely tailored to the their business. When such assets come to be exploited or used in defence, like any weaponry which has been left un-serviced, they will work less efficiently than they should. Especially in a business environment where efficiency is so important, better to get it right up front and invest the time and effort in ensuring that IP strategy is up to date, aligned with evolving business strategy, and delivering the IP assets fit for the future. Better to “keep the Devil in check”, to coin a phrase.

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