Viewing IP merely as a legal instrument, the first IPM programs merely focused on managing two main legal processes. The first is the acquisition of IP rights to secure for an organization the use of a certain intellectual material (a technology, a term, or an artistic expression), what is gen­erally known as the "freedom to operate" (FTO). The second is the enforcement of IP rights by ensuring that others do not capitalize on such intellectual material without the owner's authori­zation. As a result, IPM was seen merely as a legal affair in which effective management revolved around prosecution of patent applications, registration of trademarks and copyrights, protection of trade secrets, detection of infringement, litigation, and, in limited cases, negotiation of licens­ing agreements. This comprises the legal approach to IPM.

Only when organizations started looking at IP not merely as a legal right but as a business opportunity did IPM slowly move from being a concern of the legal department to becoming part of the strategic management function of an organization, hence the business approach to IPM. The business approach to IPM gained more following starting in the late 1980s, with the focus moving to capitalizing on the value of IP to enter new markets and enhance business performance. The gist of the business approach, or what is generally referred to as intellectual asset management? is rec­ognizing IP as a business asset. Once recognized as such IP can be used to create more formidable entry barriers for the competition, set a standard in some markets, expand into new markets, cre­ate a variety of networks through strategic alliances, and generate revenue through licensing. More and more organizations are shifting from the legal to the business approach with growing appreci­ation of the value of IP. But not all IPM programs were born equal!

Using the term IP in a general way may be deceiving. Though all forms of IP are created by the effect of law, they are different animals indeed. Patents and trade secrets are more technolog­ical, and, with the exception of some software programs, copyrighted works tend to be artistic, while trademarks are market-oriented emotional tools. As a result, and regardless of the similar­ity in legal processes pertaining to the various IP forms, IPM programs that developed in various industries were different. When for patent-intensive industries IPM meant managing patents and trade secrets, it meant managing trademarks and brands for consumer products industries, and managing copyrights for entertainment and software industries. This distinction is important for two reasons: (1) to avoid the common mistake of limiting the term IPM to patent (and trade secret) management, and (2) to be able to examine the different characteristics of IPM programs that developed in different industries.

In patent-intensive industries, patent departments emerged as early as the 1960s in major organizations, with the focus on patents and trade secrets. Trademark and very limited copyright concerns were left to the general legal department. Patent departments grew in number and size with the rising patenting activity. In addition to the legal processes outlined under the legal approach, patent departments coordinated between patenting plans and projects of the various business units across the organization. Early on, patent departments worked closely with R&D departments to ensure FTO, and to solicit invention disclosures from inventors. Another major role that patent departments played, and still play, is supporting decision making as to the most appropriate type of protection for the technological invention (i.e., patent and trade secret pro­tection). Starting in the late 1980s, the business approach gained more following, expanding the patent department's role to exploiting IP value through licensing. The number of licensing per­sonnel started to grow in patent departments, and in some organizations developed into separate licensing units.

In copyright-intensive industries, the matter was not much different. In the software industry, the legal and R&D departments worked together in supplementing the automatically vesting copyrights with other forms of IP protection (e.g., trade secret and patent protection). Software licensing is closely linked to offering the software as a product with either a shrink-wrap license or a software development agreement and thus was not pursued as a separate strategic business. Similarly, the legal department's main role in the entertainment industry was to ensure FTO through copyright clearances, and to acquire copyright licenses of the works they decide to pro­duce. Licensing is used heavily in the entertainment industry to enable the commercialization of the copyrighted work in various media and through varied channels of distribution. The business approach of IPM seems to have been engrained in copyright management all along, particularly that the copyright is seen as the product.

The IPM program that developed in the consumer product industry had one prime focus— brand management. Brands being a combination of IP (trademarks, logos, advertising slogans, right to publicity, and trade dress), and IC (the brand promise, value propositions, organizational character, and marketing campaigns), the IPM program that developed was by nature business oriented. Brand management goes back to very early origins. In his review of the history of brand management, Dartmouth College Professor Kevin Keller notes that as early as 1890s branding was largely driven by the organization's leadership.9 The first brand management program was developed by Procter & Gamble (P&G) in the 1940s,10 and by 1985 most organizations had implemented a brand management program marrying branding and business strategies together, and investing heavily in building brands.11 The American Productivity and Quality Center (APQC) reports that brands have not only gained prominence in the knowledge economy, but manufacturing industries have turned to branding strategies more than ever in the last 20 years to gain a competitive advantage.12 Despite that, the APQC notes that only 66 percent of the surveyed group (across all industries) have implemented a methodology to manage their brands (see also about safe investments).

One common development, regardless of the form of IP managed or the industry in which the organization competes, is the increasing involvement of departments other than the legal and R&D departments in managing IP. With appreciation of IP as a business asset, it started to appear on the radar of the sales, marketing, customer service, human resources, and information technology (IT) departments. Customer service departments assisted in detecting infringements of IP in the course of handling customer complaints, especially trademark and copyright infringements. Sales per­sonnel also detected patent infringements in their comparison of other products in the market. Per­sonnel and human resources departments also had to understand IP to educate employees as to the organization's ownership rights and trade secret protection (exit and entry interviews). Increasing awareness of the risk of leaking proprietary information, trade secret protection became the con­cern of every department. The risks of cyber attacks on the organization's databases and copyright piracy of its Web content brought the IT department into the picture as well.

From the foregoing, it is clear that IPM programs, in their varying shades, have developed in a haphazard way in which a number of departments are involved with little or no synchronization. Overall, IPM programs represent a messy landscape of practices that developed as organizations reacted to business pressures and needs, rather than on the basis of a well-thought-out methodol­ogy. This started to change with the emergence of the IC concept.