Intellectual property is something people can struggle to understand. For me, it should be defined as:
- An element of a new product or service that offers your project an unfair advantage. An advantage you wish to make either unique or to exploit via licensing to competitors.
- An element of a product that makes it work differently and/or takes different inputs or outputs than your competitors that allows you to prove you are not replicating the IP of others
We create so much IP without even realising. There are a number of types of IP that we can consider registering. Some of which have value in particular contexts, none of which should be registered by a business unless they are of commercial rather than academic importance.
Businesses often innovate ideas, and some of these will be commercially successful. Some will not. We judge the commerciality of our idea based on our experience of our own business areas and expertise.
Assuming we see the potential in what we do then bingo we believe we have IP!
So what next? The first step is to shape analyse deeply what it is, is unique and apply the logic of IP law to your concept. Think first register second.
Non registered IP is often the route of the average startup. We can protect our ideas, at the very least for our own use with the limited hassle and limited risk. Outside of trademarks which I would recommend for any brand-driven business the registration of designs and patents should be driven by strict commercial governance. With the question being:
- Can I, or do I intend to enforce protection against larger players on my IP if I publicly disclose it?
- Do I believe that my patentable concept is a core driver of revenues within my business?
- Do I believe there would be a spin-off business or revenue stream in licensing my IP to other businesses?
- Do I believe my IP could be cross-licensed within my company to provide structural benefits within my organisation
- Do I intend to sell my company or IP in the future, will public registration support a better price than a company secret?
All questions for expert help.
Non registered IP- copyrighting
Whether you share material internally or publish it to the world then copyrighting is perhaps the most obvious and simple step in producing material. Whether it’s a legal agreement or a powerpoint, your ideas should be yours and yours alone unless otherwise agreed. Simple copyright shows you know what you are doing and how you’re going to approach it moving forward.
A few useful tips
- Simply add your name and/or company and identify the copyright of the document as per the date of creation or publication. This way you protect yourself.
- When commissioning third parties always have them agree to your ownership of copyright and other work outcomes. Otherwise, you could get a nasty surprise.
- When co-creating or co venturing on a project always create an NDA. Even if it isn’t easily enforceable it sets the context of the conversation and it ensures how
Non registered IP- Company Secrets
Managing company secrets is important and where you believe you have IP of value but don’t want to publicise it or don’t want the rest of the market becoming aware of your approach, then company secrets and a methodology to manage them can be the preferred route.
A few tips
- Send the basis of your ideas to yourself in a sealed envelope to be later opened in the event of a contending patent. If your idea is indeed patentable and is patented by others you can argue rights to it using this approach. If nothing else strengthening your case. Sometimes called the “poor man’s patent.” This approach can also be used to extend rights. That said how you handle IP internally on a day to day basis is more important than the act of time stamping and self-posting itself.
- Ensure you have a timestamp on your design concept.
- An idea is not a design concept. You should not consider ideas IP. They only become so once they have been seen as validated by your own market research.
- Ensure you have policies as to how your IP is accessed and managed by staff, failure to implement this will diminish your company secrets.
- If the IP is created by a staff member, why not reward them with recognition. You have a better chance to protect your IP with those who conceptualised it on board.
The easiest step is to consider is your brand name or your visual image important to what you own. If you had to rename your product or service would that be a costly problem? If you see your idea as really a “me too,” or an extension of someone else’s idea that had come before you, then is your ideas biggest asset the fact it can be trademarked? This is marketing. Registration and awareness are always best!
- Protect exactly what you register. If you have a name that is unique register it in any style if you have a logo and brand document again register what you wish to hold as yours.
- Don’t be put off if your name is registered in an unrelated field/ class. We are now in a global age where often names are not unique. Think Apple and Windows.
- Provided the other company has no competitive interest in your space and your trading style in no way mimics their graphics then ultimately you should be fine.
- File quickly a few hundred in costs can save you a mountain of costs, headache and time.
- If there is a dispute and someone feels you are encroaching on their IP consider your next steps. It’s probably best to get advice.
- If you don’t get a dispute still wait for your certificate from the IPO but identify companies who might have issues with your brand, don’t invest significant brand related capital before major investments.
Underutilized and yet fast to gain and rapid to apply. Seen most in the tech giants and used to maximum and often orbit shifting effect. Think of the apple app screens, home button etc. These have shaped how we integrate technology into our lives. Registered are not the poor mans IP. Just be careful not to rely too heavily on them. The big guys will have workarounds to your ideas, it’s your job to ensure your ideas are comprehensive and holistic enough to protect work arounds and to force licensing what you have created or alternatively buying you out. Be commercial register what matters economically.
- Protect your approach for 25 years
- Of importance to protect I that is systematic and not just brand related
- There are ways of registering your specific work pathways through this mechanism if your method is strong enough
- Are much faster to achieve than a traditional patent
- Are just as enforceable as a patent
- Do not come with
- Once in the public domain, others will see and understand your approach. Make sure you’re comprehensive on your commercial USPs.
- Be best to rather than just first to register your IP. File multiple applications if it’s required so as to strengthen your arsenal.
- Why not right up your company secrets properly and index them. This will no doubt add rigor and value to your company.
We can sometimes believe these are restricted to the Einstein’s of the world and yet letting your Einstein loose on registration of IP by themselves can end up with Patents that although novel is of no commercial value. People often feel that patents are what investors will see as IP and yet patents take generally 2 plus years to achieve and require relatively significant effort to both file and protect. Most startups with IP therefore, shouldn’t defocus themselves through focusing limited resources on patents unless they have first devised a clear commercial strategy. If your plan was to register a patent application but you had no intention of completing or protecting it then I would be aware most VCs will not value your patent hugely and will likely be aware that even with a patent others will be designing competitive methods of achieving the goal your patent fits, even as you speak.
Of the IP one can register Patents are the only IP that tends to have tax benefits and incentives attached. A patent needs an input a process and an output which is both real and has physical significance.
In the UK software patents outside of image processing and data processing are extremely rare, as a result, other patent opportunities have to be sought which add value to the company and its processes.
- Patents in many countries offer tax incentives. In some countries they must be fully approved in other OECD countries they must simply be argued for.
- In the UK the patent box offers approximately 50% tax discount on patent-driven revenues (the figure is dependant on qualifying income)
- When patenting target market must be considered. You can file extensions in target markets so as to ensure you cover the areas of the globe you plan to do business in. Your IP is both public and fair game after a while.
- Dependant on what you want to register your patent for. My argument would be when its filed you should follow through to completion. Patent pending for 8 years as it can be in some European countries doesn’t fool anyone!
- Patents are a solid mechanism of creating tax-efficient licensing revenue
- Patents are a solid way of protecting given mechanisms which can make it difficult for competition to offer products and services that are as efficient as your own.
Whatever route you take with your IP file for the right reasons! Intellectual property. The product of our brains. Makes the world go around and it’s important you treat your own brain and its outcomes with the respect you deserve.
Extending the net of your IP and ensuring it is enforceable and is applied within your business is a whole other ball game maybe one for another article perhaps!