Subramanium Vutha*

The connection between intellectual property rights and knowledge is so ose that you cannot understand the one without comprehending the other

‘Intellectual property rights’, or IPR, is a compendious term that covers, among other things, patents, trade secrets, copyright, trademarks, and service marks and designs. Each of these IPR elements is knowledge based. For example, a patent is granted for a product or a process that is novel, inventive and capable of industrial application

Quite evidently, a patent is granted for an innovation that springs from a knowledge worker or a team of knowledge workers. Patented inventions are, therefore, the result of application of knowledge to create a new process or product that the law protects in certain ways.

Copyright, on the other hand, vests immediately upon its creation with the author of the work, including literary creations. This term includes drawings, blueprints, and documents embodying processes, methodologies, techniques and practices. Most, if not all, explicit knowledge would qualify for copyright protection.

Trade secrets protect information that confers a competitive advantage to those who possess such information, provided such information is not readily available with or discernible by competitors. Examples of trade secrets include customer lists, technical data, internal processes, methodologies, processes, techniques and formulae. Here again, we see the role that knowledge acquisition and application play in the generation of trade secrets. Consequently, trade secrets play an important role in knowledge development and application.

Design rights protect the ornamental, non-functional external configuration of products. These are also the outcome of knowledge efforts. Trademarks and service marks are used to distinguish the products or services of one producer or supplier from those of others in the marketplace. In a world where several million products and services vie for attention, the creation and leveraging of memorable trademarks and services marks has gained critical importance.

Trademarks, in the form of concocted words, logos, sounds, shapes and the like, are, again, the result of creative efforts by knowledge workers. Until adopted and used, trademarks are kept as closely guarded secrets.

Business leadership and IPR
Leadership in intellectual property rights does not guarantee leadership in business, but the connections are apparent. Most, if not all, leaders in world markets are also leaders in identifying, protecting and leveraging intellectual property.

This is not restricted to high-technology companies. IPR is more about the application of technology rather than technology itself. Patenting leaders such as Proctor & Gamble have over 500,000 patent filings. Global business leaders who leverage their IPR assets generally develop and protect impressive patent portfolios, as shown below (these numbers are not conclusive; they are changing all the time as the number of patents sought and granted increase).

Business leadership and knowledge
It is perhaps not a coincidence that global business leaders are also the ones most committed to recognising, fostering and leveraging their leadership in knowledge management.

Knowledge management leaders are seeking to leverage knowledge assets to drive key performance indicators such as customer success, project success, employee satisfaction and innovation.

Intellectual capital management is a key component of knowledge management. The management of IPR assets, which forms a subset of intellectual capital assets, is, given the circumstances, fundamental to sound knowledge management.

IPR assets and knowledge assets
All knowledge does not qualify for IPR protection. Only knowledge that qualifies as trade secrets, or the application of which results in copyright materials or patented inventions or designs, would lead to IPR protection.

Some contemplation on the elements of IPR mentioned earlier would satisfy business executives that most explicit knowledge qualifies for intellectual property protection, either as trade secrets, copyright material, designs or trademarks, or as service marks or inventions that have the potential to be patented.

Even orally transmitted knowledge could qualify as trade secrets. Thus, it is now common practice for potential business partners or collaborators to ask for the signing of secrecy and non-disclosure agreements that protect confidential information, even such that are shared orally. This is because a significant part of such knowledge is shared in the form of meetings, presentations, discussions and teleconferences.

To summarise, it is a good idea to have a company’s lawyers, especially IPR lawyers, participate in and contribute to knowledge management plans and initiatives. There is considerable synergy possible between those charged with knowledge management and those responsible for the creation, protection and leveraging of IPR assets.

*Subramanium Vutha is a lawyer with special interest in information technology and e-commerce laws and IPR issues. He lectures on information technology law to postgraduate law students at Bombay University.