The castle analogy is perhaps a bit clichéd, but it is nonetheless easy to visualise; if you think of your business as the proverbial castle, then what elements of your business make up its fortification?
First Defence – Moats and Registered IP Assets
We often think of the moat as the castle’s first defence; in an IP context, we similarly view registered IP assets (i.e. patents and trade marks) as a company’s first defence.
Both the moat and registered IP are visible to potential attackers/infringers (patents and trade marks can be found on the public register), though it may be difficult to make a qualitative assessment of their efficacy based on a first glance. The moat might be wide, shallow and lacking any hazards (i.e. there may be multiple, but weak, patent filings) or narrow, deep and full of various hazards (i.e. there may be fewer, but stronger, patent filings).
Potential attackers/infringers would need to make a closer assessment (i.e. due diligence) before seeing whether there were ways to cross – or get around – these barriers. If the moat/registered IP assets prove to be ineffectual barriers, then the first defence is breached.
Secondary Defence – The Castle Walls and Foundational IP Assets
In castle parlance, the castle walls themselves might be the second line of defence; in IP, we can view these as less obvious, but nonetheless foundational IP assets. Less obvious than registered IP, this may include other crucial intangibles such as brand & reputation, software or critical partners. Though still visible, it is harder to make a qualitative assessment of the walls (or foundational IP assets) from the outside, as potential attackers are unlikely to be privy to the materials used, depth and structural efficacy of the walls (or supporting IP assets).
Tertiary Defence – Knights And Employee Know-How
There is likely to be a reliance on the skills of the knights/archers/etc. in order to prevent the castle walls from being breached; in IP terms, this might take the form of employee know-how and skills. Depending on their individual and collective skills, this may prove a significant barrier to entry – however, if all the fighting “know-how” is held by just one or two fighters, this will naturally weaken the overall capacity for defence.
All of these lines of defence require the use of clever tools/countermeasures to protect the castle and the people inside – e.g., using buckets of hot tar, arrow slits and/or traps. In IP terms, this might include business innovations, trade secrets which are unknown to competitors and a clear IP policy that allows the business to protect its various IP assets through appropriate safeguards, thereby slowing down potential competitors and strengthening the company’s own competitive advantage. It also involves the use of both offensive and defensive measures – the former, for example, may include lookouts scoping the surrounding area and villages for attackers (i.e. competitor, market and/or patent landscaping analysis). Making sure your knights, archers and even villagers work together to maintain these various defences is crucial; in business, it’s the all-important recognition that IP strategy and IP culture applies to everyone within the company, and one break in this collective effort may undermine the company’s competitive advantage.
How and when the castle deploys these countermeasures depends on the size, skill and methods utilised by the attackers. As with a castle defence strategy, it is important that your business is protected by more than just its moat (i.e. registered IP such as patents) and that it has a clear and well-organised defence structure (i.e. a robust IP strategy). Perhaps most crucial, however, is making sure that there is an analysis of potential gaps in the castle’s structure and armoury (i.e. what are the points of weakness where potential attackers/infringers may circumvent the defensive measures in place) in order to clearly understand what defences/tools (i.e. IP) you have and enable you to play to your strengths.
You could also leverage the value of these defences in various ways; you could offer protection to the surrounding village in exchange for a monthly levy (i.e. licence out your IP assets for a fixed fee & royalty rate).
Finally, you could, of course, request an IP valuation. This will subject your IP assets to the scrutiny and diligence of an independent IP valuation expert who will carry out extensive due diligence then will go on to value your IP assets reflecting on the strengths and weaknesses of your IP and your underlying IP strategy & business model. It’s a bit like the Lord of the Castle calling his local surveyor and asking him to value his stronghold!