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Intellectual Property Lawsuits, Becoming a Thing of the Past?

Tucked away in a side bar of the latest issue of Bloomberg Businessweek (December 18-22) is a quick summary of the H.R 3309 Innovation Act penned by Joshua Brustein. It documents the damage done by “patent assertion entities” and hopefully a bill to curb their actions. These companies build their business on threatening legal action for patent infringement knowing most companies will simply settle rather than fight a costlyCost of Intellectual Property litigation. The fact that such companies exist demonstrates the need and value of a clear intellectual property plan. Even small businesses need to protect their assets to retain and build sustainable value.

Defining intellectual property

Everyone has heard about copyright, trademarks, and patents but may not truly understand the difference. At a high level, copyright focuses on the action of distribution of a particular asset for a specified length of time. Trademarking defines a particular entity through the use of “marks” that distinguish it as a singular source. Finally, patents protect inventions so they may be disclosed to the public. In each case tangible assets are created and as such, have value. But why bother with this process if litigation and the process itself are so expensive and difficult to defend? The answer lies in taking advantage of the product life cycle.

Patent Basics

Procuring a patent generally falls under either a utility or design process. In each case, temporary protection is given during the review process. This allows businesses to benefit from the protection during the rigorous evaluation process. The critical data to remember is any patentable invention must not have been known or used by others in this country; been previously patented or described in print; or been sold or used publicly within the last year. Any violation of these rules denies right to patent. Additionally the invention must be tangible and not simply an idea. Usually an actual prototype or detailed description of a working model is necessary. As a best practice, don’t forget to use non-disclosure agreements for all interested parties who review the invention.

Struggling with IP

Unfortunately patents are viewed as a “big business” attribute and not for small businesses because of cost, limited resources, and return on investment. This is wrong! It is true significant investment is necessary to build out an intellectual property portfolio but can become extremely valuable when a small business matures and looks for expansion capital. Cost of a basic copyright starts at $35, trademarks – $275, and provisional utility patents – $1,000+. Patents are more expensive because of the search process and should be filed with a patent attorney or qualified representative. Business owners have to assess the value of their ideas and resources to defend against infringement. As mentioned early in this post the defense costs can outweigh benefits of obtaining protection. As a best practice, business owners should review options by conducting a feasibility analysis prior to execution. Feel free to contact me if you need assistance.

What is the Pulse in Small Business?

pulse ProductivityEvery successful business creates a tempo or pulse. Changes come in the form of highs, lows and plateaus within sales, marketing, operations, or staff. Understanding the next change is critical to success. Looking at your business as a series of systems that have to work together to remain healthy and grow, drives a holistic viewpoint. Focusing on one area only, like financials will lead to neglect in other critical areas of the business.

See the whole picture

It is possible for business owners to make changes in productivity strictly by reviewing the bottom line. This is somewhat true. The adage, “everyone knows that sales heals all” indicates that with enough money thrown at a particular problem, success is inevitable. The problem with such a practice relates to long-term value and sustainability. Companies will not survive and begin to experience diminishing returns through management by cash flow only. Management has to carefully  review each area of their business and make changes to improve efficiency or enhance value.

Understanding business drivers

Strictly looking at productivity as gross sales, negative change in revenue production is really a byproduct of hidden underlying problems. Perhaps the calculated list price of a good or service is based on raw costs and minimum margins rather than consideration of market maturity and competition. This becomes a problem when cash flow is inadequate to purchase inventory or demand is directly linked to discounting. Companies can fail merely because effective net margin is unattainable. Another example concerns individual sales efforts. Sales personnel depend on a blend of targeted product mix, product knowledge, brand awareness, competitive pricing, and distribution to sustain their efforts. Their compensation plans should drive attention to corporate initiatives and goals. If they don’t, confusion and poor performance results.

How to prepare against the flat line

In many small businesses performance and growth stagnates as operational costs eclipse net profit. A company will basically flat line with no revenue growth and perhaps no loss of market share. The best strategy is to be a forward thinker leveraging historical trends in performance with expectation of future need. When rising raw costs or increasing competition threaten growth, management has to look at potential change to ward off lulls in production. This is where business planning and strategy begin to shine. Without specific planning a company will begin to flounder and start the knee jerk reaction of cost cutting versus leveraging core competencies.

Where to begin

Just thinking about implementing new policies and procedures to develop a holistic view of your company can be daunting. The first step is a preliminary assessment by identified core functionality of the business. The assessment will uncover relational issues between departments, weaknesses in infrastructure, and other potential areas of concern. We advise a third party approach rather than an internal audit because results are unbiased and based on diagnostic skill sets that are not normally a part of small business. Either method will yield results and begin the process of restructuring.

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