Article written by Mark Barber (Growth Manager – Innovation) and Owen Santry (Growth Coach – Innovation) at GrowthAccelerator www.growthaccelerator.com
For smaller businesses, protecting intellectual property (IP) can be a bit of a minefield. Where do you start, how should you go about it and what pitfalls should you avoid?
By Business Matters / March 28, 2014 (but still just as valid today!)
Timing is everything
First and foremost it’s crucial to incorporate thinking around intellectual property as early into the innovation development process as possible. A lot of companies consider IP in isolation and start to think about it once the wheels are already in motion, only to discover problems once it’s too late. Entrepreneurs should check as early as possible that there aren’t others in the market already that could scupper their chances of success or infringe on existing IP held by others.
Conduct initial searches for potential ‘early doors’ infringement issues. You can get information on patents, trade marks and registered designs on the IPO website and look on Google for existing brand names or unregistered trade marks. This research can help you discover what is and isn’t already out there. A surprisingly high number of companies start progressing business ideas without an initial background search.
It’s also important to consider what might be protectable whilst looking at how this fits with your business strategy and whether the associated costs and timings are compatible and viable. If your marketing strategy is to gain first to market advantage for a product that has a two year life cycle and then exit, a four-year patent timeline isn’t going to work strategically.
Although it’s important not to consider IP too late, it’s also important not to rush into the process too soon and to keep your powder dry until you’re ready. A lot of people don’t realise that the patent clock starts ticking once they apply and often take this first step before realising the consequences. With UK patent applications you only have a year before you have to move forward with other stage processes, and if your research and development is not ready it’s easy to run out of time. So many UK inventors don’t have full scale protection in all required territories as they did not have the resources to file patents in the time available.
Look beyond patents
There is a tendency to consider patents as king but IP is different for each business. Patents certainly have their place but they don’t suit every innovation, and are not an option to some. Most software isn’t patentable and if you are a retailer for example you probably won’t have much interest in patents. However if a patent isn’t for you, don’t ignore IP completely – look at protecting your brand name, domain name and the content of your website. Design protection is much underused and significantly cheaper than patenting.
Some businesses choose to avoid patents and aim to protect their innovation through being first to market. If this is your strategy, make sure that you have the marketing budget to invest in making sure people know about it. A lot of companies fail to fuse IP, R&D and marketing strategies which can result in lots of tricks being missed.
Also, don’t automatically assume that the only way to take a new product or design forward is to form a company to make and sell it. This isn’t always the best solution – many creative brains create brilliant products but don’t have the skills to sell it effectively. Licensing to a well-established business which has the resources, connections and credibility in the marketplace may in fact be a less risky and more profitable way to get your product to market.
Get specialist advice
IP can be a complicated and daunting subject, so get specialist advice, rather than relying on ‘pub advice’! People worried about patents often turn to people they know and trust, whether that’s a friend or family member, but the wrong advice can lead to problems. Consult the experts, whether that’s a patent or trade mark attorney or specialist IP firm. Working with a service like GrowthAccelerator can also help identify what steps you need to take to protect your assets. Our IP audits prove very useful in identifying what in your business can be protected and any new opportunities for exploitation including licensing. IP is a tangible asset and it’s important to know how you can use it to benefit your bottom line.
Think it all through
A common pitfall that we see is entrepreneurs doing too much with a new invention, product or process without protecting its patentability. Many creators unfortunately destroy their own patents by disclosing details without confidentiality agreements in place. Whether entering into discussions with interested parties or taking the invention to a trade show to gauge interest, this excitement or effort to prove commerciality can deem your innovation no longer patentable. Always use a confidentiality agreement and customise its contents.
It can also be tempting to enter into a deal with the first interested party but make sure they’re the right partner for you. Everyone is human – when someone is really interested in your innovation and says all the things you’ve dreamt of hearing, it’s easy to say yes too quickly. But ask yourself whether they can fully exploit all markets and all uses of your product. Rushing into an exclusive worldwide deal with someone that doesn’t have the credibility or network to deliver could severely hamper your chances of success.