Knowledge Protection – Fiduciary Responsibilities For Intangible Assets – Intellectual Property

C-suites, directors and officers (D&O’s) are obligated now to achieve a level of familiarity with intangible assets that enables them to practice consistent and timely stewardship, oversight, management, and monitoring to, among other things: ensure control, use, ownership, and value (of the assets) is sustained throughout the assets’ respective life-value-functional cycle…bundle – position the assets to maximize and extract as much value as possible…Two additional, and perhaps larger points are worthy of making. First, intangible assets are not the sole province of large, multi-national corporations. Rather, intangible assets are truly embedded in most every company, ranging from start-ups and spin-off’s to SME’s (small, medium enterprises) as well as mature and maturing firms. Intangible assets have little, if virtually nothing to do with a company’s size. Granted though, larger companies tend to produce – possess a broader range of intangible assets, but, their contribution to value, revenue, and sustainability are likely to be proportionately similar.Second, most issues today related to – affecting a company’s intangible assets have moved from merely being voluntary (managerial discretion) to truly constituting a fiduciary responsibility! In other words, ‘managing and management’ in their most basic sense, now include recognizing, assessing, and ultimately ensuring control, use, ownership, and value of a company’s intangible assets is sustained.A significant percentage of company management teams may not, as yet, have the inclination or perhaps expertise to actually execute those fiduciary obligations. Without clearer and consistently viable and lucrative pathways to achieve profitably from (utilizing) intangible assets, it’s likely many business decision makers and D&O’s, save for the truly forward looking, will continue to express skepticism, reluctance, and/or be outright dismissive of pitches regarding the potential ‘business viability’ of intangibles because: the resources and time required to manage (identify, unravel, extract value from) intangible assets is perceived as an expense rather than an investment, the product of which, can literally walk out the front door and be taken to – acquired by a competitor…building a managerial culture (from scratch) to utilize – exploit intangibles is often perceived as being subjective, esoteric, and plagued by inconsistencies in the valuation and accounting of intangibles and there appear to be few pioneers in the financial-lending community, in light of the recession – financial crisis who are willing to come forward and advocate for intangible assets…data/information is often incomplete and the metrics are often varied and subjective insofar being able to consistently measure the performance of intangible assets in a sufficiently convincing manner to attract lenders and/or investors…there are risks associated with company’s becoming overly transparent (with respect to their intangible assets) relative to the growing probability (vulnerability) that competitors, raiders, taxing agencies, and/or trollers will use that information for nefarious purposes with adverse (economic, competitive advantage) affects/outcomes…Even some seasoned business leaders find intangible assets conceptually challenging, to apply. Part of the challenge lies in the word itself, ‘intangible’. That is, intangible assets lack the conventional sense of physicality found in many assets, e.g., intangible (physical, brick and mortar) assets. Here are two examples, e.g., a business person: can literally see and touch the end product of an automobile manufacturing/assembly process. The array of intangible assets contributing to the production/assembly and ultimately sale of that automobile are largely intangible, and may be, relatively speaking, less recognized or overlooked insofar as their specific contribution to that end product, e.g., design, logistics, intellectual capital, trade secrets, intellectual property, brand, image, goodwill, contractual relations, etc.May design and apply sophisticated techniques and systems to execute employee work schedules to reduce overtime pay. In-house designed systems like this are classic examples of ‘intangible assets’ that frequently go unrecognized, dismissed, or merely taken for granted. The value of that system, in terms of what it collectively contributes to the company as an intangible asset, lies in the fact that it (a.) produces competitive advantages, (b.) enhances sustainability, and (c.) reduces payroll costs, among other things. Of course, another way to value an intangible asset like this is to proffer the question ‘would competitors want to acquire it, and if so, what would they be willing to pay for an immediately useable and already proven product given they would not have to undergo the trial and error, research, and inevitable mis-steps incurred to bring it to its operational stage.The absence, or seeming snail’s pace, of enthusiasm (acceptance) within the larger business community, regardless of the growing fiduciary responsibilities to the contrary, for identifying, assessing, managing, and utilizing intangible assets, can also be attributed to:1. accountants – who may or may not fully grasp the contributory significance of intangibles (reporting, monetization, accounting, etc.) therefore may convey reluctance for expanding clients’ familiarity with range of potential uses of intangibles beyond what is minimally required by statute, e.g., Sarbanes-Oxley, FASB 141, 142, etc…2. quarterly focused strategic planning – that exclude recognition and/or utilization of intangibles because decision makers often perceive them as strategic assets that are ‘slow to bear fruit’ (value) and require disproportionately more care, e.g., stewardship, oversight, and management compared to other assets…3. self-deprecation – some business decision makers still characterize their company in conventional ‘brick and mortar’ (tangible asset) contexts and dismiss the notion their company possesses or produces intangible assets (intellectual/human capital) worthy of the time/effort necessary to identify, assess, and safeguard them, or that competitors would want…4. consultants – who portray the process of conducting an ‘intangible asset assessment’ (e.g., identify, unravel, and bundle/position intangibles to maximize – extract value) as being far more complicated and time consuming than necessary…Sound and practical studies, papers, and articles continue to mount that provide substantive – actionable evidence along with viable venues for companies to more fully utilize their intangibles. Literally, intangibles’ value is often there, embedded in most every company, just for the finding. Often, it’s just a matter of learning how to recognize them, unravel them, and figuring out how best to position – bundle them to extract value (revenue) from them.Most business decision makers are realists though. They recognize that before embracing, what for some, may be perceived as quite literally, a ‘sea change’, quite apart from most conventional ‘mba precepts’, there are certain things that should be in place (settled law, so to speak) before their time and resources can be justified. For example:1. the right kind of incentives have to be in place, e.g., specific tax advantages, more immediate financial inducements, and consistent and viable pathways to achieve near term profits and long term value, etc…2. there must be compelling reasons to do it, e.g., consistent enforcement of regulatory mandates and relevant court rulings coupled with significantly elevated risk for non-compliance, etc…3. financial – lending institutions must know how to accommodate intangible assets and do so with greater willingness and consistency, e.g., accept as collateral, valuation, etc…4. practical – relevant training must be in place to build business consciousness – culture (e.g., stewardship, oversight, monitoring, and management, etc.) of intangibles to include objective methodologies to identify, unravel, assess, leverage, and exploit (maximize and extract value from) them…Obviously, 1, 2, and 3 above would require (varying degrees of federal, state) legislative action. Number 4 on the other hand, is independent of the others and serves (essentially) as the lynch pin. That is to say, forward looking – forward thinking decision makers, c-suites, and D&O’s are becoming increasingly obliged (fiduciarily speaking) to avail themselves of training and counsel from proponents who understand the nuances, intricacies, and most of all, the potential for effective and profitable use of intangible assets.A rather critical conceptual juncture for attracting c-suites’ to the uses of intangible assets is to ensure they do not characterize (wrongfully assume) intangibles are synonymous with intellectual properties. Specifically, unlike patents, trademarks, and copyrights (e.g., intellectual properties) there is no certificate issued by the government to a company that says, these are your intangible assets. Instead, it’s each company’s (fiduciary) responsibility to identify, manage, and extract as much value as possible from them.That’s where (managerial) fiduciary responsibilities initially materialize which includes designing and putting in place specific and effective measures to:1. distinguish what intangible assets actually are, and equally important, what they’re not, and how to identify and unravel them and approximate their value…2. recognize how intangible assets are embedded – linked to a company’s value, sources of revenue, and future wealth creation (sustainability)…3. identify how intangible assets evolve and/or are produced, or acquired and the various roles – contributions intangibles make to a company’s image, goodwill,reputation, brand, relational capital, and equally important, its sustainability andprofitability…4. know how to design and put in place proper/effective practices (procedures, policies, etc.) to sustain control, use, ownership, and value of a company’s intangible assets that reach well beyond conventional intellectual property enforcements…5. bring greater business and economic clarity to a company’s intangible assets in terms of how they can best be utilized and leveraged along with strategies to extract as much value as possible…This attention to detail, of course, pleases stockholders! Absent the level of care (stewardship, oversight, and management of intangible assets) as conveyed above, companies and their decision makers will find themselves increasingly vulnerable to lawsuits.