The Invisible Edge

Mark Blaxill and Ralph Eckardt, both consultants in intellectual property strategy, argue that competitive advantage in the modern economy rests on intellectual property and that most executives treat it as a legal matter rather than as a strategic one.

Their historical material traces intellectual property conflicts across industries, including the sewing machine patent war and the resulting patent pool, the Wright brothers' litigation and its effect on American aviation, the semiconductor cross-licensing arrangements, and the pharmaceutical industry's dependence on patent exclusivity. They use these to argue that the outcome of industrial competition has repeatedly been determined by who held and enforced rights rather than by who built better products.

The strategic prescriptions concern treating the portfolio as an asset to be managed: mapping what the company owns against what it needs, identifying gaps before competitors do, deciding deliberately between exclusion and licensing, and building rights around a competitor's position. They also argue for aggressive enforcement and for treating litigation as a business decision rather than a legal one. The book appeared in 2009, and the subsequent changes in American patent law, including the America Invents Act, the Alice decision on software patentability and the eBay decision limiting injunctions, have substantially weakened the enforcement leverage the authors assume. Bessen and Meurer's empirical work also challenges the general claim that patents create value outside specific industries.