A New Framework for IP Strategy Conversations: Ex Post vs. Ex Ante (from IP P®OSPE©TIVE)

By | January 14, 2010

(Editorial Note:  I have gotten some great feedback from my recent post 9 Out of 10 Patents are Worthless:  Here’s Why and How to Keep it Happening from You (Part 1 of 4).  I am working on the next installment, so be on the look out for more of my thoughts on this meaningful topic.)

Readers of the IP Asset Maximizer Blog will probably enjoy this very smart post from Ian McClure of IP P®OSPE©TIVE entitled “A New Legal Landscape for IP:  Ex Ante will Join Ex Post Services“.  (While the post says some very flattering things about me, this is not why I am recommending it:  the IP P®OSPE©TIVE blog is consistently good, and Ian “gets” IP business issues.)  In this post, Ian frames IP Strategy in terms of “ex post” and “ex ante”–that is, instead of dealing with IP issues after it exists (i.e., ex post), IP Strategy addresses IP prior to its development in the course of developing value within the corporation as it relates to IP and intangibles.

Ian McClure explains:

[T]he IP legal profession has perhaps relied on [a post ante business model] to an even greater degree [than other lawyers], as the general lack of comprehension with respect to intellectual property in the business setting has resulted in the tendency of businesses to throw IP in the corner, put up fences, and send the dogs after anybody that seems to be an intruder. . . . This cause-and-effect business model relied upon by IP lawyers and law firms has been easy going – IP assets have been viewed as a necessary cost center which deserves a litigation budget to protect their prohibitive nature, i.e. monopoly power.  IP lawyers have gotten very good at protecting IP, sending cease and desist letters, prosecuting patents and trademarks, drafting non-competes and confidentiality agreements, and taking other ex-post or preventative measures.  This business model has not met its demise, as the demand for ex-post legal services will always exist. . . .[But a] shift in IP legal services has begun. Enter the decade of ex-ante IP legal services.  It is, after all, the decade of the intangible asset, and with this proclamation comes the announcement that strategic IP management services will become just as coveted as IP protection and prosecution.

Ian and I agree that consumers of legal services will be increasingly demanding IP legal services directed toward value creation, not just problem solving, but we may disagree on who will be able to provide those services, in that I think that IP Strategy is not necessarily a job for IP lawyers–but that is a conversation for another day.  Those of you interested in this topic (and anyone interested in the future of IP legal services) should read the rest of Ian’s post.

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