In today's knowledge economy, business strategies are key to determining the competitiveness and innovation of an organization. As opposed to tangible assets that are covered by conventional IP regimes, business strategies are intangible, fluid, and even complex, leaving key questions regarding their legal protection. This article examines whether and in what way business strategies are protectable under current IP regimes and contractual arrangements. This piece contends that although business strategies cannot be owned or protected independently as stand-alone IP assets, their component parts can be protected through an integrated and multi-layered legal framework through key case studies. The piece stresses the inadequacies of existing legal doctrines and identifies strategic IP planning as a route to maintaining a competitive edge in a progressively innovation-focused marketplace.
Introduction
With today's cutthroat business environment, strategy becomes a crucial component that defines the direction of an enterprise. It is a blend of plans and choices regarding market penetration, customer interaction, operations, and utilization of assets. These frameworks of strategy are key elements in defining long-term viability and market distinction. As IPRs provide extensive safeguarding for material innovations such as inventions, designs, or trademarks, the prospect of protecting business strategies equally remains legally questionable. This evokes the intriguing question: Can strategy per se be given intellectual property protection?
What is a Business Strategy?
A business strategy is a coordinated and flexible system intended to achieve commercial goals. It can consist of new models of pricing, proprietary systems of delivery, distinctive ways of engaging with consumers, or focused marketing campaigns. Strategy is intangible in nature and generally broad, which makes it difficult to fit into conventional IP categories. Unlike a patent or trademark, which is specific and must be in a defined form, a strategy is, by nature, malleable and context-specific. The legal tradition, based on formal subject matter, generally has trouble sanctioning such subtle and intangible modes of intellectual product.
Can You Protect a Strategy Itself?
Among the available legal options, protection of trade secrets is the best available device for protecting strategic insights. Although not regulated by specific legislation, protection can be enforced through contractual liability and judicial precedents. Courts have persisted in upholding confidentiality's sanctity where prudent efforts are made to keep the information secret. For example, confidential information related to price structures, customer relationships, or work methods, if subject to non-disclosure agreements, can be protected under the doctrine of breach of confidence.
In order to utilize this type of protection, companies should make sure that confidential strategies are only available on a need-to-know basis, backed by clear documentation and contractual measures. This includes the application of non-disclosure agreements (NDAs), the incorporation of confidentiality clauses into employment terms, and the adoption of internal data control measures. However, once a strategic insight becomes publicly known or independently recreated, its protection is no longer tenable under this doctrine.
Patents
Under existing statutory provisions, specifically Section 3(k) of the Patents Act, "a mathematical or business method or a computer programme per se or algorithms" are not subject to patentable subject matter. This provision essentially excludes protection for abstract business models, regardless of their novelty or commercial reach. The reason lies in preventing monopolies over administrative or intellectual ideas that are not necessarily technical in nature.
But where a strategic model is achieved with a technical innovation, like a new algorithm enabling a supply chain platform, there could be scope for patent protection, as long as the invention fulfils the criteria under Section 2(1)(j) of the Patent Act, namely, novelty, inventive step, and industrial applicability. Here, attention will have to be directed away from the strategy and onto the underlying technical solution.
Copyright
While concepts or strategies are not protected under copyright law, what copyright law protects is the actual expression of the ideas. Documents such as business plans, strategic reports, internal handbooks, or presentations to the market can be treated as a "literary work" in accordance with Section 2(o) of the Copyright Act. Copyright covers the original form, wording, and layout of the documents, but not the strategy itself. So, while others may generate a similar strategic idea, they would not be able to copy the way you express it without risking being liable for copying. This type of protection is also valuable for companies that create long, lengthy marketing documents or internal whitepapers, in that it enables them to stop unauthorized copying or reproduction of these documents. Originality is low, but the act of thinking and thinking creatively in the presentation does require some measure of creativity and intellectual effort.
Trademarks
Trademarks are another method of protection available to you without restriction, a very potent and indirect source of protection for strategic moves. A good brand identity generally reveals an underlying market strategy in terms of consumers being targeted, value offered to consumers, or aesthetic differentiation from competitors. By registering your name, logo, slogan, and packaging arrangements (if seen as distinctive) under the Trade Marks Act, the company will be able to obtain the rights of exclusive use of the markings possessed. These identifiers may not technically protect the strategy by definition, but may prevent a competitor from publicly adopting a name or logo that circumvents the commercial goodwill that such identifiers come to embody by association with the strategy. In some cases, if the identifying characteristics contain enough visual or thematic uniqueness, they may be thought of as trade dress, if they have been afforded decreased meaning by members of the marketplace in regards to the product or service. It should be paramount in industries where the appearance or design of a product or service is included in the strategic reach and is as important as the product or service itself.
Transactional and Commercial Mechanism
Given the limited ability of statutory IP law to cover a holistic landscape, contracts are a useful mechanism for protecting businesses. Employment contracts, supplier contracts, licensing agreements, and partnership deeds should all be prepared properly with confidentiality, non-solicited, and in some cases non-compete clauses. The Courts are generally unwilling to enforce post-employment restraints in the nature of contract because of the provisions of the Contract Act, but breach of confidence and fiduciary duties are generally enforced. Confidential business knowledge gathered in confidence cannot be utilized against the employer or contracting party. It is therefore important that businesses make investments in a legal infrastructure that acknowledges and mitigates these risks.
Challenges and Limitations
However, putting protections in place on ideas can present challenges. The first is an evidentiary one: strategies are often conceptual and fluid. As such, there may be issues of proof of the proprietary nature of the strategy and the practical scope of breaches of its unauthorized use. In addition, without protection via registration or contract for the material element, proof of any breach is highly subjective and burdensome.
The second is that industries operate within competitive environments, and possibly different firms will have the same solution organically produced. There is no action taken by the law to restrict market actors who create a similar solution from exercising their own innovation rights, therefore limiting the monopoly rights one can derive. This requires a proactive upper-level and protective formal system that not only legally, but also through firm strategies and innovation.
Responsible Practices for Firms
To effectively protect strategic assets, firms should pursue a balanced approach that includes a managerial and legal approach. A few examples of practices include conducting periodic intellectual property audits to determine what features are protectable, registering brand features and copyright materials for protection, instituting tight systems of access control and internal processes for confidential information, ensuring employees and stakeholders are trained on proper ethical and legal use of proprietary information, and utilizing comprehensive agreements that reflect all of the various types of strategic alliance. Such combined measures not only reduce the risk of theft but also add to the firm's market value and reputation.
In conclusion, the totality of a business strategy is not verifiable in relation to various aspects of intellectual property protection for current purposes, but the components are legally protected by statutory rights and contractual devices if appropriately defined and acted upon. Instead of grasping for monopolistic rights to generic ideas, firms/companies should objectively strive to isolate and protect whatever aspects of strategy can be unique, confidential, and useful commercially. In this way, firms not only facilitate their respective prospects for longevity but assist in returning society to a place of healthier, more socially responsible, innovative commercial practice.
References
- https://online.hbs.edu/blog/post/what-is-business-strategy
- https://www.oxyzo.in/blogs/deep-dive-into-trade-secrets-protection-under-indian-law/113553
- Section 3(k) of the Patents Act, 1970
- Section 2(1)(j) of the Patents Act, 1970
- https://www.researchgate.net/publication/387504099_An_Innovative_Approach_for_Automating_Patent_Application_Creation
- Section 2(o) of the Copyright Act, 1957
- https://businessmitra.com/blogs/copyright-registration-of-business-plans-in-india
- https://www.mondaq.com/india/trademark/1544664/building-a-strong-brand-identity-the-role-of-trademarks-in-business-strategy
- https://ironcladapp.com/journal/contracts/business-agreements/
- https://babariaip.com/blog/how-does-intellectual-property-play-a-role-in-business-growth/
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
