30 Oct 2019

Your IP Strategy: Why What and When

There’s an old saying: possession is nine-tenths of the law. You’ll no doubt have heard it many times. In essence, it implies that having ownership of something makes one’s legal position stronger if it is subject to a legal dispute. To be fair, it’s an oversimplification, but it’s also true that having something in your possession means it’s for others to prove their rights to it.

That’s all well and good for physical things like land, buildings or jewellery, but the issue of ‘possession’ becomes more problematic in the case of intangible assets. These include ideas, music, literary works or brand images. And for potentially valuable product, industrial or tech’ innovations, it could be the difference between an inventor making a fortune or dying in a ditch.

The common term for these nebulous items is Intellectual Property (IP). It’s vitally important that businesses understand what IP they own and have a clear strategy to protect and benefit from their intellectual assets.

How Do I Protect My IP?

Some of the terms related to IP will be familiar to you. However, how each element is applied and what it does is less easy to understand. Here’s a quick breakdown of some ways IP is defined:

Trade Secrets: This one’s simple. Don’t tell anyone what’s constitutes your IP so no one can steal it – and/or only do it under a strong confidentiality agreement. It seems obvious, and it’s an idea that’s served the likes of KFC and Coca Cola well for many years. In short, if you have a good idea that’s making you money, keep it to yourself and/or protect it well!

Copyright: This IP protection applies to print, publishing, software code, performance, film and music. It protects the originator for seventy years and prevents others from appropriating their work without credit. Issues like literary plagiarism or music sampling are relevant here.

Trademarks and Design Rights: This protection involves formally registering the visual representations of a business or its products. This includes brands, logos, taglines or the distinctive design elements of a product or service that makes it unique. A registration lasts for ten years and should be renewed as required.

Patents: This is a complicated and potentially expensive form of IP protection, but one that can reap much value if used strategically. A patent is a legal document that formally registers IP and makes it public so others know the IP content is the sole property of the inventor. Once in place, it would be illegal for others to use the ideas without a contractual agreement. Patents can apply in the UK, in Europe or worldwide. The process to register a patent is complex, time-consuming and can be expensive. However, they can be used strategically to protect IP, prevent competition, generate revenue from licenses, take advantage from tax incentives like Patent Box as well as providing a robust defence if any company decides to make a claim against you for infringement. Firms should ideally brief a qualified patent lawyer to ensure the background research is thorough and the filing process is legally sound and go through a proper process to ensure you have an opportunity to build a strategic portfolio.

Developing An IP Strategy

With so much at stake, it would be an error for any company be they early-stage start-up or international conglomerate not to review their approach to IP thoroughly. That means putting into place appropriate processes and reviews that safeguard IP for the sole benefit of its owner.

An outline of how to proceed would be:

A) Undertake a thorough review of your company’s current IP. Ask what IP is the firm creating? Where is it held, and what it’s worth to your business? Crucially, assess how secure it is at present.

B) Re-visit your strategic objectives. Look at your goals through the lens of IP to understand how much of your firm’s current and future value relies on your intellectual assets.

C) Act early to protect significant IP using the most appropriate means. Tidy up existing contracts and agreements to ensure you’ve locked everything down.

D) Look at your IP through your competitor’s eyes. How much of your IP assets would a competitor snatch if they were able to do so? This process will give you a good idea of its commercial value. It may also open up other sources of income related to licencing, royalties or revenue schemes.

E) Look for funding opportunities for future IP protection activity. Applying for the government’s Patent Box scheme and R&D tax credits may offer some welcome benefits and/or additional turnover.

F) Consolidate your IP eco structure. Develop policies that ensure IP is, and remains, protected. Implement None Disclosure Agreements (NDAs) and protective covenants where necessary and brief all staff on their general responsibilities concerning IP.

All of the above would be carried out within the financial constraints of the business. For early stage companies, budgets are tight and cash is king, so we’d need to prioritise ruthlessly and ensure any activity delivers maximum value. Future funding rounds can be used to pay for executing later stages of the IP Strategy, each stage locking in more value for the business.

Rinse And Repeat

When you consider that for some businesses, 80% of their value lies in intellectual assets a well-conceived IP strategy becomes essential. It’s equally vital this regime is reviewed and updated regularly.

Given the complexity of the subject, getting professional help is a wise move. Suitably qualified people, who can fully assess your IP position, prioritise what needs to be addressed and help you put the right protection in place.

It’s an investment that will pay dividends in the long term. And, as mentioned above, the strategy should be developed in line with available budgets and business priorities – and executed in line with the business’ commercial objectives and priorities.

It’s worth mentioning that while there are many viable commercial reasons for implementing an IP strategy, there is also the element of risk reduction. You only need to look at the protracted litigation of major mobile phone companies to see what can happen when IP is contested.

Implementing an IP strategy should help you avoid distracting and damaging IP disputes allowing you to concentrate on helping your business to benefit fully from the intellectual assets you generate.

Get Your IP Under Control

Having reviewed the above, we hope the benefits of creating an IP strategy are patently obvious.

LexSolutions are experts at developing comprehensive IP strategies. We work with clients to help them identify, protect and monetise their IP assets both now and for the long term. When you work with our team, you’ll soon understand how valuable these intangible assets are, how quickly and easily they can be secured and how they can be used strategically to add value (and potentially revenue) to the business.

For a discussion on how the LexSolutions team can create your IP strategy, contact us directly at chris@lexsolutions.com or manu@lexsolutions.com or call 0203 74 515 74.