Do you make intellectual property a part of your business strategy and planning?

Intellectual property should be part of your strategic
thinking and planning. This should include:

• being aware of emerging technologies in your own
  businesses and as far as possible being developed by others and assess these as
  potential competitive advantages or threats;

• having a good understanding of intellectual property rights
  and to seek appropriate legal protection of home-grown developments;

• managing the risk of infringing the intellectual
  property of others, especially patents – third party rights might prevent the
  manufacture and/or use of a product or process after substantial investment;
  and

• being on the look-out for intellectual property rights
  relating to important technical developments with good legal rights protection
  and considering if these can be and should be acquired.

Imagine yourself being confident about intellectual
property, knowing how it applies to your business and sector, knowing that you
are strategically smarter than your competitors.

To do this, we help our clients develop a process of
intellectual property identification and management. This may be a simple
exercise in some businesses achieved without incurring huge cost either of
management time or of money spent. For other businesses, it will be strategically
vital, more complex, and take time to develop and implement.

Do you understand the role of intellectual property in your business?

You need to develop an approach which fits with your
business. In some businesses intellectual property may not be particularly
important to current or future success. Although most businesses will at least
have a trading name, a logo, or style which should be protected to prevent use
by competitors and add value. Protection by registering a trade mark or design
should be considered.

But for many businesses, innovation and protection of the
resulting intellectual property will be important. Innovation can be a major
break though or the development of an existing product or process. Applying for
one or more patents should be considered and, if appropriate, an application
made. Registering trademarks and designs might be important too and should also
be considered.

You will face one of the most difficult challenges in
innovation which is to identify what is likely to be important and so invest the
usually limited time and money available in seeking patents, trademarks, and
designs. Your R & D function may be bristling with great ideas, but which
will lead to the next generation of successful products or processes? How will
you decide in which to invest?

Are you sure you know all your own intellectual property?

Make sure you find it

This means employing a process to identify and evaluate the
intellectual property in the business and record the results. Remember that the
intellectual property is not just registered rights like patents or trademarks.
Just as important is a process for identifying ideas and innovations being
developed including those which might be happening during day to day operations
and not part of a development programme.

The process must be tailored to your business. It might be
very simple or more involved in larger businesses. The process will a
continual. The aim to be as sure as you can be that you don’t miss some
important development which might give your business a competitive advantage.

Decide what to protect

So that you now know the innovations being made in your
business. The next question is should you protect them, for example, by
registering patents, trademarks, rights in designs? Which countries to cover?

You need to develop criteria which you will apply in making
decisions about which technologies to protect. Patents are expensive to apply
for and take through to grant. Trademarks and designs less so. You can apply
the same or different criteria as the registration process goes through the
various required stages, particularly with patents. Should you continue or
stop?

The aim is to avoid regrets later on. So be active and make
positive decisions based on your own criteria as to, say, whether to patent or
trade mark or not.

The aim is never
to look back and think if only we had known we could have patented this or done
something else to protect our ideas.

Minding your intellectual property.

We recommend that you review your portfolio of intellectual
property rights regularly and again apply your own criteria to:

a) review what you have and whether
all of it is still relevant; and

b) what else should you ought to
be doing to protect the ‘intellectual property’ in your business.

An example of the latter which happened often is that
developments of the original invention are made which could be patented.
Another is product name or brand names changing over time – do you registered
trademarks still protect the change names, logos and brands?

Have you developed your own criteria of investing in intellectual property protection?

The important objective is that you make an active decision
on whether you seek patents or not for a particular innovation. Maybe
trademarks and design registrations too. You are in control. You decide. You
are confident in making the required investment decisions.

The actual approach and the detail will need to be created
specifically for your business. This approach when implemented will help you
create a flow from identify innovation through to obtaining the right legal
protection if that is what you decide should be done. Alternatively, the
outcome might be for a particular innovation that legal protection is not the
right way.

You don’t want to develop an important innovation and then
allow all your competitors to copy it without a carefully considered decision
that registering a patent or a trade mark is not justified by the likely
commercial benefit from the innovation.

Often further innovations follow as the initial idea is
developed towards a saleable product or service. These ‘follow on’ innovations
could be protected by registering intellectual property rights. But, again,
should you?

You will need to develop your own criteria to be applied for
your decision making process both:

a) as to your initial investment
in the cost of applying to register some intellectual property; and

b) as to the continued
investment in the application process and/or renewing the registered rights.

They will be the criteria that best enable you to back and,
very importantly, to decide later to continue backing innovations which are
most likely to generate the required return on investment. 

Even with the most effective process and criteria you will
need to accept that not all the innovations you invest in will be as successful
as you had hoped. The criteria should over time mean you back more winners and
fewer duds.

May 2020