Technology-focused collaborations form a foundation of today’s corporate planning strategies. Such collaborations can be in the form of strategic alliances, joint ventures, open innovation or other legal structures. Regardless of how the participants characterize and legally structure such collaborations, the most common motivation for forming such alliances is to pool technology and R & D resources. When technology and R & D is involved, it must follow that IP ownership issues should loom large in the planning stage of the collaboration. However, my experience shows that the parties rarely give appropriate consideration to IP ownership in the agreements that are supposed to fully set out the rights and responsibilities of the parties.
I can say with authority that IP issues are not usually given proper consideration in collaborative agreements because my expertise in this area results primarily from helping clients after their collaborations have failed. My clients typically sought my help after their collaborations went sour and they sought to exit the relationship with at least some valuable IP rights intact. In each of these situations, it was apparent that if my client had come to me for advice while they were executing the general business and financial parameters of the collaboration agreement, they may not have needed me to fix things on the back-end. Put simply, if I had been brought in on the front-end to put a fine point on IP ownership issues resulting from the collaboration, I would have been able to prevent questions regarding IP rights from even being a question.
My perspective about the preventable nature of IP ownership issues was confirmed when I recently attended a meeting of professionals who focus primarily on strategic alliances and other types of collaborative ventures. In this meeting of just over an hour, I counted at least 5 instances where someone commented something along the lines of “when the relationship goes sour, the IP issues cause problems.” From the sighs that accompanied the mention of IP ownership issues, I obtained the clear sense from these seasoned professionals that IP was not only a big problem, but also a common occurrence in their collaborations.