IP Strategy: Think Beyond the Sword and Shield

By TAP Staff Blogger

Posted on July 17, 2012

Is it time for intellectual property (IP) to move beyond law firms and litigation?
When U.S. Circuit Court Judge Richard Posner recently tossed out an infringement suit that Apple had filed against Google’s Motorola Mobility suit, he told Reuters, “It’s not clear that we really need patents in most industries.”
In an op-ed piece discussing the Digital Public Library of America (DPLA), Pamela Samuelson, a pioneer in digital copyright law, intellectual property, cyberlaw and information policy said, “It's no secret that copyright law needs a significant overhaul to adapt to today's complex information ecosystem.”
John Palfrey’s book, “Intellectual Property Strategy” discusses how a flexible and creative approach to intellectual property can help an organization accomplish goals ranging from building market share to expanding an industry. TAP had an opportunity to talk with Mr. Palfrey about this book, and why he believes intellectual property should be considered a key strategic asset class.
What is the central idea in “Intellectual Property Strategy”?
The main idea is that intellectual property strategy is a core strategic question for the CEO of nearly any kind of institution. I argue that too often, CEOs leave IP strategy to the outside law firm, or ignore it altogether. Increasingly, almost all for-profits and non-profits need an IP strategy. 
The target audience for this book is corporate managers and nonprofit administrators. Why should people in these roles be concerned with intellectual property?
Senior leaders need to see IP as a core asset class. Every organization, for instance, has a brand. How are you managing that brand? It's a strategic question for any company, any school, any library. And a brand is IP. For many institutions, their biggest asset is the know-how of your employees. That's another key aspect of IP. And for information-based organizations, they have key copyright and patent interests that they need to manage.
What is meant by the “the traditional sword and shield approach”?
Historically, managers have thought about IP as something that should be used either as a "sword" or as a "shield." The sword is something that you can use to skewer your opponents in a market-place. The shield is something that can help defend your organization from your opponents. Sometimes these approaches are appropriate. I argue, though, that we need to think more broadly about IP strategy: to think beyond the sword and shield.
In your book, you present strategies for intellectual property that involve openness and connectedness, even using the word, “interoperability.” Can you provide an example of this type of approach to managing intellectual property?
Sure — that's a great question. I think the development of the social web is the best example. Think about the layers that came before: lots of technology developers created a series of open protocols, related to the Internet, the web, email, and so forth. On this open and generative platform we've been able to build enormously important, profitable businesses online. The most recent iteration of this story has to do with Facebook and Twitter, or any of the application platforms like App Store or Android's app market. Twitter, for instance, is highly interoperable with many other mobile and online systems, allowing many others to build upon their platform, and generating value for Twitter in the process. Increasingly, if Twitter can support sub communities, as well as its huge general community, using their common platform, they stand to benefit wildly. Mozilla and Wikipedia are also great examples. These are open, interoperable platforms where the companies or non-profits are not charging for the interconnection, but are seeking to make money — and make a difference — in other ways and at other layers.    
In addition to your new role as Head of School at Phillips Academy, Andover, you also serve as a Director of the Berkman Center for Internet & Society, and you are the chair of the Steering Committee of the Digital Public Library of America (DPLA). Can you talk about the DPLA and how a typical American may leverage the vast amounts of information that would be available in a digital library network?
The building of a Digital Public Library of America (DPLA) is a big passion of mine. In a digital library network, I expect that most Americans will access digital resources through their local public library. I think that the DPLA will succeed most dramatically if it is like plumbing: we all rely upon it, but we don't necessarily think about it all the time or know how it's put together. If we can be much smarter about sharing our digitized cultural heritage resources — books, yes, but images, moving pictures, audio files, interactive games, and more — and making them available to libraries to put in context for their own patrons, we can achieve great things together. Our country needs this resource — and we're falling behind other countries, like some in Europe and East Asia, that are building national digital networks.  
A follow-up question with the digital public library — do the strategies you discuss for IP have a place in the work you’re doing with the DPLA?
Yes, very much so. The chapter on non-profits is directly relevant to the DPLA and its mission. For the DPLA, the idea is to provide an open, shared, interoperable resource — the opposite of a proprietary, closed resource that is consistent with the sword and shield model. The Internet and digital media era makes great things possible, but we need to build it, and build systems like the DPLA, with the right principles in place from the start.