A robust IP strategy can be crucial to your business, whether or not you deal in conventional ‘technical’ innovation. IP is an asset arising in virtually all of the unique parts of your business, that can be used, not only to protect or increase your market share, but also to credibility and value to your business. Nevertheless, a large majority of UK companies do not have a formal IP strategy, nor have they ever performed a formal IP audit. In fact, the value of IP to business is frequently either underestimated, or not appreciated at all. Many, potentially valuable, IP rights can be overlooked in a business and, therefore, cannot add value to the business; and, if you do not know they exists, you cannot use them to prevent competitors from encroaching on your market share. So, what can you do? A healthy IP strategy starts with an IP audit. Read on to find out more…
What is an IP Audit?
An IP audit is a review of your business to gain a clear understanding of all of the intellectual property it owns, map those to the relevant commercial activities and goals, identify any related risks, and then provide strategic IP management guidance and advice to help you to make the most of its potential value.
Why is it an important first step?
Any innovative business is likely to have some Intellectual Property. This need not be registered IP, such as patents or trade marks, but may instead be one (or, more likely, a collection) of the many unregistered IP rights (see our Did you know? Article 2 on the News/Information page). These can, of course, be just as valuable as registered rights, but only if you know they exist and understand how to manage them effectively; and this can be equally true of patentable inventions which, if left unprotected, can pose a risk to the business as it leaves the way open to competitors to offer the same element or feature (possibly at a lower cost because they are not bearing the associated R&D costs your business has incurred). So, an IP audit provides an ‘snapshot’ of your business, and the IP it currently has, mapped to your commercial activities and goals, so that any ‘gaps’ or risks can be clearly seen and addressed. If you have never had a formal IP audit performed before, you might want to start by completing the UK Intellectual Property Office Health check (https://www.ipo.gov.uk/iphealthcheck) and take it from there.
What happens after the IP audit has been performed?
Once you know exactly what IP you own, a good IP strategy can be formulated that sets out a) how that IP should be protected or safeguarded to maximise or preserve its value; and b) how that IP should (or could) be leveraged to ensure that it works to protect the important parts of your business, or to help your business to grow, for example. The detail here lies in your own commercial plans and goals: with your IP carefully mapped to those as part of the IP audit process, the ways in which it can effectively be leveraged usually become clear.
What does a good IP strategy cover?
The best way to manage your IP is very specific to your business, but a good IP strategy should cover most, if not all, of the following aspects:
Ownership. Who owns the existing IP and any IP as it is created going forward? Employers usually own IP created by their employees for the business, but the situation in relation to other contributors is not so clear cut. For example, who will own IP arising from a Joint Venture or collaboration agreement? What about external contractors such as brand designers or product development agencies? It is important to ensure that your contracts and agreements are clear as to the intended ownership of any IP arising.
Commercialisation. Do you plan to manufacture and sell products yourself? Does your business model include licensing to third parties? If so, what type of licence will you offer? And what IP will be included? It is important to ensure that the terms of any agreements with third parties that involve your IP, clearly and unambiguously reflect your intentions (i.e. what has been agreed between you) and the commercial goals to which they relate.
Third Party IP Rights. Do you know whether or not your commercial plans might infringe someone else’s IP rights? A good IP strategy should include some provision and process for checking to see if you are free to commercialise your product or service. This might involve some general, or more directed, searching to identify third party registered IP, but this should, of course, also be directed by available budget and the potential profitability of the product or service in question. Another question is, do you know what your competitors are doing? Patent landscaping could, for example, help you to get a better ‘feel’ for the specific technical areas on which your competitors might be concentrating their R&D, and to find ‘gaps’ in those areas where your business could capitalise.
Enforcement. What processes could (or should) you have in place for identifying and dealing with any infringement of your IP rights? Legal issues of this type rarely progress to full court proceedings, and many such issues can be quickly concluded at relatively low cost. Nevertheless, it is advisable to have some form of litigation strategy in place that will ensure that you can enforce your own IP rights, or defend yourself against others’ IP rights, should the need arise.
Update your IP Audit regularly! An IP audit is just a ‘snapshot’ taken at a point in time. Your IP, and how it matches up to your business goals, will evolve and change as your business evolves. Your IP strategy is only as good as the raw data on which it is based, so make sure your IP audit is updated periodically, perhaps once a year or each time your launch a new product or service. This has the added benefit of allowing you an opportunity to take decisions on registered IP that are clearly mapped to your current commercial goals. Some IP rights that may have been crucial a year ago may not be now; whereas other elements may have become more important with time. If you update your IP audit regularly, you can, not only ensure that your IP strategy remains current and effective, but also, potentially, control any mounting costs associated with maintaining obsolete IP or IP of diminishing importance to your business goals.
Do you need help with your IP strategy? To discuss an IP audit, or if you have any questions relating to intellectual property, please do contact us:
Tel: 07714797135 or email: vicki.strachan@strachanip.co.uk
