Australia: Intellectual Property Management in Australia: Coming out of The Shadows

Three recent reports looking at issues relating to intellectual property (IP) and IP management come to an interesting convergence of views: that generally speaking, IP management is not broadly practised in Australia, and that it should be. Additionally the Australian Department of Defence has recently issued a new intellectual property policy. That 'policy promotes continuous improvement of IP management practices within Defence'. Why this recent interest in IP and IP management, and is it yet properly focused?

The authors of the Australian Graduate School of Management (AGSM)/Freehills report entitled The Management of Intellectual Property in Australian Organisations comment that 'if Australia is to develop to its full potential, then the management of knowledge assets must become a high priority, not just to research organisations and a few elite firms, but the vast majority of firms around the country. One area where this needs to be emphasised is in the management of IP …', such as patents, trade marks, copyrights and designs. Unfortunately, those authors also come to the view that 'the general state of IP management in Australian firms is inadequate and ad hoc'. That report does, however, identify six 'lessons learned' from the experiences of three Australian organisations that have sophisticated IP management programs in place–Bluescope Steel, Fosters and the Australian Nuclear Science and Technology Organisation. Those lessons are that IP management requires:

• a holistic approach encompassing the corporate and legal context

• dedicated management and legal staff

• concerted attention at the very top of an organisation

• an understanding of world's best practice and worldwide monitoring

• a culture of IP to pervade the organisation

• recognition and the use of a mix of IP rights.

A comparable assessment to that of the AGSM/Freehills report is made of the Commonwealth Government sector in the Commonwealth Auditor-General's report entitled Intellectual Property Policies and Practices in Commonwealth Agencies where the recommendation is made for the development of a whole of government approach to the management of Commonwealth intellectual property. In the case of New South Wales, the New South Wales Standing Committee on State Development in its report entitled Science and its commercialisation in New South Wales recommends that the relevant Minister develop intellectual property management guidelines for adoption across all agencies in the New South Wales public sector.

The reasons for this focus on intellectual property management are well documented and are based on a number of foundations. Those reasons include that Australia's future depends more on its intellectual assets than its physical assets; that in order for those intellectual assets to maximise their value to Australia, they should, where appropriate, be converted to intellectual property–legally protectable rights; that once converted to intellectual property, then like any other form of property, intellectual property must be managed in a manner aligned with the strategic focus of an organisation and finally that intangible assets, including intellectual property, can and in many cases do represent a greater proportion of the value of an organisation, be they private or public, than do tangible assets. Therefore, just like any other asset, they need to be properly managed in order to maximise value.

It is also important to understand, however, that IP management does not come as a one size fits all concept. Thus, what may be appropriate to a research based organisation may not be appropriate to a government agency or a brand based company or a start up. IP management therefore needs to be tailored to the relevant needs of an organisation while maintaining the integrity of the concepts that form its basis.

While action to implement the six 'lessons learned' contained in the AGSM/Freehills report and the recommendations of the other two reports would certainly be welcomed, there is still a focus that is missing in Australia regarding the importance of IP and IP management. Australia has long held a desire to be a 'clever country'. A significant element of being that 'clever country' is that Australia needs to experience greater success in the process of innovation–that is, bringing more new products and services to market from its research base. One gap that has been identified in improving the chances of success in that area is the focus on improving commercialisation skills. Among other things, the Australian Institute of Commercialisation has been established to seek to address that gap. The commercialisation gap has, however, long been recognised, the intellectual property management gap, however, has not been, and clearly needs to be addressed.

Implementing proper intellectual property management practices across a broader base will provide Australia with the necessary spring board from and link between research and commercialisation. IP management therefore has to be a matter of greater focus in achieving Australia's goal of becoming a 'clever country'. That means, IP management needs to be taught in our universities at both undergraduate and postgraduate level; that it must be practised, not merely from a compliance or risk management perspective, but from a strategic perspective; that high profile champions in the business, government and academic community need to extol its virtues, and that policy makers need to expressly recognise that IP management is in fact a crucial and to date missing component in Australia's innovation culture.