IP management: protecting what matters most

Faye Moran, Founder, Senior Legal Operations Manager, Marks & Spencer, explores IP management in the digital economy. The views in this article are the author's own, and do not represent the views of Juro nor those of CLOC.

Few practice areas have been more profoundly changed by the digital economy than intellectual property. When I first joined Pearson, drafting and managing IP contracts was a painfully manual process, regardless of the volumes; both the business and in-house legal relied heavily on outside counsel to protect IP, we’d seek advice and process support from our external lawyers, and at some point we’d get a hefty bill. Virtually no data was captured, and institutional memory would sit in silos with a handful of individuals. IP is the basis of so many modern businesses, whether it’s an algorithm, a fabric design or a TV programme, but for too long the process around IP management has been perceived as a blocker - not an enabler.

The good news is that things have changed. With the omnipresent and permanent ‘more for less’ environment, and the advent of legal operations as a mature discipline, the opportunity is there for in-house IP lawyers and legal operations professionals to demonstrate the value they can unlock for the business. Even the late-adopter teams are waking up to the potential that technology offers to safeguard and drive the exploitation of a company’s IP in ways that would have been unimaginable even ten years ago. Make sure you’re taking advantage of that progress.

Many hands make light work

For starters, our ability to outsource high-volume, low-value, non-strategic work has grown precipitously - particularly in the UK after the Legal Services Act in 2007, but globally too. The ‘NewLaw’ providers have a lot to offer in the IP field when it comes to volume work, so much of which is already process driven and standardised.

Anyone managing company IP at scale is familiar with the repetitive queries and tasks encountered, regardless of the question and the questioner. The expertise of alternative legal service providers will increase hand in hand with their exposure to IP work and the challenges their clients share; this can only drive efficiencies for those in-house departments ready to make use of them.

Beyond this, technology solutions can help us to reduce our reliance on outside counsel, and the burden of the corresponding costs. IP management platforms like Symphony, CPA Global’s IP Platform and Yerra Solutions’ IP Magic Triangle aim to deliver a one-stop shop that gives a complete picture of the IP portfolio, helping us to be more flexible when choosing outside counsel and other service providers, and enhance institutional memory.

IP is one area where legal can directly influence revenue - for example, by protecting IP and facilitating new licensing opportunities

Workflow functionality means that we encourage colleagues in the business to self-serve, generate their own contracts and documents through automated templates and contract automation and can disperse and augment IP knowledge. Crucially we can also capture data from our interactions, helping us to build the full picture of where in the world our rights are protected, where there’s potential for new registrations, and where all the costs and restrictions come from.

If we were to crystal ball gaze for a moment one can see a future where technology will make significant changes to the way IP is created, registered, protected and exploited. The (much hyped) possibilities of Blockchain, for example, signal a possible future where the IP protection process could be heavily automated and IP exploitation could happen in a way that provides huge amounts of valuable data.

A seat at the table

So what do we do with all that time? More with less is always the goal, but becoming more efficient doesn’t have to mean losing headcount. Instead, it should liberate in-house legal and the business to focus on adding real value, through our strategic insight about the company’s IP portfolio. Where could we expand? Where are we vulnerable? Which opportunities to exploit IP might we be missing? IP is one area where legal can directly influence revenue - for example, by protecting IP and facilitating new licensing opportunities. These are the strategic value-adds that could empower lawyers to get a seat at the table, but only if we can find enough efficiency to be able to focus on them.

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To achieve this we need to take several practical steps. Scoping and investing in the right technology, as described above, is an important process, but it’s by no means a panacea (nor is budget sign-off a given). For many companies, there’s a foundational education piece to take care of before business stakeholders are ready to self-serve, and to look at where their IP portfolio might offer opportunities.

Empowering and educating business teams, for example, about the importance of a robust IP framework can pay dividends down the road; improved terms and conditions in supplier agreements can have a direct effect on getting products to market faster. Wins like these help change perceptions of legal, from blockers to real business partners, and empower us to become the business partners we want to be.

If IP management isn’t optimised to take advantage of the new technologies and providers, and falls back on manual processes and outside counsel, the potential for costs to spiral is huge

As the demands of an international IP portfolio increase, this approach will no longer be a nice-to-have. If IP management isn’t optimised to take advantage of the new technologies and providers, and falls back on manual processes and outside counsel, the potential for costs to spiral is huge - and ultimately unsustainable. If that way of working sounds familiar, don’t be afraid of tearing up what you have and starting again. The business of ten years ago isn’t the business we have now, and certainly won’t be the business we have ten years from now. IP management has to change too - and it’s up to all of us to adapt and drive that change.