February 15, 2018
The notion of protecting knowhow is strange to those who think of intellectual property as comprising patents, trademarks, and copyrights. Knowhow is not associated with agencies of the US federal government that issue “Letters Patent” and Trademark and Copyright Registration Certificates. Knowhow has no federal agency to give it sovereign gravitas. However, public and private schools issue documents, such as diplomas, degrees and certificates, that indicate particular students have demonstrated knowhow by meeting defined requirements.
Federal rights are exclusive; diplomas and degrees confer no such rights. The exclusive rights attached to letters patent and registration certificates but not to knowhow is great but it is not everything. Patent rights, for example, have limited lifetimes and do not protect market share from competitors who design around those patents, invalidate patents, or obtain their own patents. Patent rights do not guarantee the patented product will have a market, will work as expected, or will never be obsolete. And patents are not self-enforcing.
Similarly, a registered trademark does not forbid new brands of existing products from appearing on store shelves, rendering last year’s “in” brand to lower shelves.
Your copyright registration certificate for your photograph or song may evidence your exclusive rights but will not guarantee others will want to pay for the use of those rights.
In short, the notion of intangible property rights as providing “protection” for our ideas may be a lot less meaningful than we would want it to be. Nonetheless, intellectual property is still an important business asset.
A business, however, needs to think of intellectual property not in terms of patents, trademarks, copyrights, trade secrets. Business intellectual property is a dynamic asset, not a static one. Intellectual property for a business includes (1) the collected knowhow of an assembled and trained workforce; (2) innovation, whether patentable or just a good idea; (3) a compelling message to employees and customers; and (4) business reputation.
Of these, knowhow is fundamental – a business cannot begin to engage in business without it. It is where business begins.
The collected knowhow of an assembled and trained workforce can be protected, as will be explained below, perhaps not perfectly, but not to try is as foolish a mistake as getting a patent and then never considering improving it.
What exactly is the “collected knowhow of an assembled and trained workforce?”
© 2017 by Nexsen Pruet, LLC
Mike Mann is a member (partner) of Nexsen Pruet, practicing with the Intellectual Property Law Group. He is also intent upon increasing the intellectual property of Nexsen Pruet and others by frequently speaking on intellectual property topics and developing new ways of looking at IP issues.