The SANS Technology Institute

Leadership Laboratory

Leadership Lab: Intellectual Property Series

This series of essays can help the IT manager learn how to identify and protect intellectual property and intangible assets.

Trademark Infringement - The Likelihood of Confusion - Updated October 27th, 2008
Valuation of Intellectual Property Case Study - IPWatchdog.com -
What is Intellectual Property - March 14th, 2007
Creative Commons and Intellectual Property - May 1st, 2007
What Is a Patent? - April 7th, 2007
Copyright - April 7th, 2007
Digital Rights Management - April 7th, 2007
Trademark and Brand - April 7th, 2007
Trade Secrets - April 7th, 2007
The Value of IP - April 7th, 2007
Licensing and Franchising - April 3rd, 2007
10 Steps to Protect IP - March 13th, 2007

What is Intellectual Property

March 14th, 2007
By Stephen Northcutt

Intellectual property shares many of the characteristics associated with real and personal property. Intellectual property is an asset and, as such, can be bought, sold, licensed, exchanged, or gratuitously given away like any other form of property. Intellectual property law rewards and encourages innovation by providing limited monopoly rights. US IP law and guidelines are designed to protect "the common purpose of promoting innovation and enhancing consumer welfare."^1,2

The intellectual property owner has the right to prevent the unauthorized use or sale of the property. However, unlike physical property, intellectual property (IP) is intangible. It cannot be defined or identified by its own physical parameters. It must be expressed in some discernible way to be protectable. Countries vary in how they regard and protect intellectual property. In some cases, you may need to file for intellectual property protection in multiple countries. Be sure to fully research and understand the intellectual property laws and protections in each country you're involved with.

Intellectual property is at a dynamic tension with antitrust law. Intellectual property law rewards and encourages innovation by providing limited monopoly rights, while antitrust law prohibits monopolization. But ultimately, as US IP Guidelines emphasize, both serve, and are interpreted by U.S. courts and enforcers to further "the common purpose of promoting innovation and enhancing consumer welfare." Because of the "public good" qualities of intellectual property, the essence of intellectual property rights is the right to exclude. This right exists regardless of whether an intellectual property owner, say, a patentee, actually practices and markets her invention. Consistent with this approach, while the antitrust laws generally prohibit certain exclusionary conduct, they "do not negate the patentee's right to exclude others from patent property." Under the IP Guidelines, even if an intellectual property owner is found to have market power, that market power, if not otherwise unlawful, does not "impose on the intellectual property owner an obligation to license the use of that property to others."¹

Over the past 30 years, our understanding of the importance of intellectual property continues to grow. If the 1970s was the decade of lost innocence about risk, then the 1990s was the decade of lost innocence about IP. Until the early 1980s, decisions about IP captured relatively little public attention.³ In the 1990s, intellectual property was increasingly recognized as the defining marketplace advantage. In 1995, the US exported 27 billion in intellectual property while importing 6.3 billion.⁴ Today, most organizations understand the importance of IP, "IP also facilitates the organization in gaining sustainable competitive advantage in the market."⁵

Information centric defense starts with an awareness of the value of each section of information within an organization. Identify the most valuable information and implement controls to prevent non-authorized employees from accessing it. A good starting point is to identify your organization's intellectual property, restrict it to a single section of the network, assign a single group of system administrators to it, mark the data, and thoroughly check for this level of data leaving your network.⁶

¹ http://www.ftc.gov/speeches/other/dvisraelin.htm
² IP Guidelines 1.0 (citing Atari Games Corp. v. Nintendo of America, 897 F.2d 1572, 1576 (Fed. Cir. 1990)).
³ http://www.caslon.com.au/ipguide7.htm
⁴ http://pubs.acs.org/hotartcl/chemtech/97/sep/comp.html
⁵ http://jobfunctions.bnet.com/whitepaper.aspx?docid=84511
⁶ http://www.sans.edu/resources/securitylab/321.php