When faced with a question on the IP strategy or management of your business, many business owners fail to appreciate the significance or the value of the answer that they give. IP, or intellectual property, refers to all of the intellectual property rights that your business has and can gain value from. Many people restrict their understanding of intellectual property to patent protection. However, depending on the nature of your business, your intellectual property rights could also include trade marks, designs, confidential information, copyright, know-how and/or trade secrets. There is a commercial value for your business in all such intellectual property rights. To best leverage this commercial value, you need to develop an awareness and understanding of what IP rights your business has.
Developing this understanding could begin within your own business and might include such questions as:
• What formal IP protection do we currently have?
• How is revenue and/or value being generated from that formal IP protection?
• How much is being spent on or allowed for protecting IP that is generated by our organisation?
• What and how is innovation taking place in our organisation on a daily basis?
• Is this innovation being recognised and/or used? If not, what does happen to it?
Having considered the answers to these questions, you may then want to consider connecting with an IP adviser that you feel has a good understanding of your business and your plans going forward. Such an adviser can add great commercial value to your business by assisting you with the development of an IP strategy that suits your commercial environment and the growth of your business.
With this strategy in place, you should then have a clearer understanding of what investors would term as your “IP position”. Should your organisation subsequently develop new products, processes or concepts or acquire a company with its own IP, your IP position will naturally change. Your IP position will also be influenced by the nature of the commercial marketplace that your business is operating in. Your IP adviser will be in the best position to advise you when your IP position changes. However, you should always consider the following in regard to your business.
1. What type of IP protection is available for the newly acquired IP and what commercial value is it likely to have? What commercialisation options are available?
2. Conduct an assessment and analysis of all existing IP rights in your commercial marketplace. This naturally provides a wealth of market intelligence that can assist with your current commercial endeavours and provide information on future directions. The assessment should generate a comprehensive picture of the state of play in your marketplace: who is developing what technology, when were they developing it, and what are they going to do now. It will also reveal your potential competitors, partners, licensees, licensors, assignees and assignors.
3. Do you have Freedom to Operate (FTO) in your commercial marketplace with this IP? Would you infringe a competitor’s IP right with this IP? That is, having your own IP right does not necessarily guarantee that you have FTO, so this should be investigated before commercial operations begin. All of this information will put you in a much better position to make current and future business decisions such as whether the sale, license or assignment of the IP should be considered or kept and used in-house, future R&D directions and/or acquisition plans or even the viability of the business itself. We strongly recommend that any business employ an independent IP adviser who has a good understanding of your commercial marketplace. This will enable you to make the most of the IP rights that your business currently has to maximise your business growth.