A recent article in Industry Week claims to offer a cost-effective approach to maximizing international property protection. While the three step approach is logically sound, reasonable from a cost perspective, and reasonably complete from a legal perspective, I can’t help wondering how effective it really is. But to understand why, we first have to review the proposal.
The authors, who know their stuff, recommend the following:
- Always utilize contracts with trade secret protection with employees and business partners.
- Use patents to not only fortify the protection but protect your IP from those entities with which you have no contractual relationship.
- Implement your strategy in those countries in which you do business.
It’s certainly the right way to do business from an IP protection standpoint, and I might even recommend something similar if you asked, but I’m not sure it’s going to work, especially for those of you doing business with countries like China where IP protection has historically been very weak. I know that they have been talking about beefing up their IP protection, that they recently signed an MOU with Japan, and even cracked-down on the Fu Wei group, but what they’ve done is a drop in the bucket compared to the IP piracy that has been allowed to go unchecked for decades. And they’re not the only country where patents and WIPO might not do you any good. Furthermore, a contract is only as good as the legal system set up to enforce it. If we’re talking a country that naturally distrusts foreigners and tends to rule in favor of local companies, a contract might not do you much good either.
In other words, the best strategy in the world won’t help you if the country in which you are doing business isn’t strong on IP protection. As a result, the first step should be to only do business in countries with strong IP enforcement if IP is critical to your business. The next step would be to find trusted business partners in those countries who believe in mutual IP protection. Then contracts (which should still be solid) become less important and patents only an issue for products that can be cost-effectively reverse engineered.