IP Rights IN practice
Our pointers on intellectual property when starting up (see Copyright, Etc.) continue to apply as your business grows, and throughout the full lifetime of each relevant creation, technology or brand: protect and profit, share with care and look before launch.
See Intellectual Property Rights and Know Your Intellectual Property Rights for general intellectual property (IP) overviews, and Copyright, Design Rights, Trade Marks, Patents and Trade Secrets & Confidentiality for more detailed summaries of each of the main intellectual property rights. See also Copyright & TM Markings for more on how you can indicate to others that you have different IP rights.
Here, we'll take a look here at how this plays out in practice. For all these issues, instructing an IP lawyer will really help to add value to your business, and perhaps even preserve your freedom to carry on your business without being blocked by other people's IP rights.
When you file your application for a patent or to register a trade mark or design, there are points in the process for each type of right when the application is published, and then when other people can oppose your application, giving reasons as to why the application should be amended or rejected altogether. Oppositions would be submitted to the intellectual property office of the relevant country that is processing the application.
For example, someone might claim a trade mark you apply to register is confusingly similar to theirs, or perhaps that the invention in your patent application is obvious and should not be patented.
You can of course oppose other people's applications, in the same way, to stop people obtaining IP rights that may limit your freedom to use your own creations, tech or brand.
IP rights infringement
Once you have one or more IP rights protecting your creations, technology and brand, you have an exclusive right, creating a barrier to market entry for others. If you think someone else is copying you, you need to assess whether they are 'infringing' your IP right and consider whether, how, where and when to bring an infringement claim against them.
Of course, IP rights cut both ways, and you may find yourself on the receiving end of a claim that you have copied someone else.
There are various routes for bringing a claim. If the issue concerns copying of products being sold via an online marketplace, it may be suitable for resolution using the relevant marketplace's internal take-down policy and processes. See Online Copying for more information.
Otherwise, in the UK, smaller claims (of up to £500,000) may be handled by the specialist Intellectual Property Enterprise Court. Larger claims would be handled by the High Court. These are usually 'civil' claims. However, there are also criminal sanctions available to combat counterfeiters, which you may be able to pursue via the Trading Standards authorities and ultimately the criminal courts.
Pursuing these claims successfully can really help to bolster the market position of your business, but can be costly and time-consuming. Think about what you want to achieve: is it an exclusive position in the market, or would you be prepared to grant a licence to an infringer to generate licence fees or other benefits in return?
licensing your iP rights
There are different ways you can profit from your IP rights. If you do not need an exclusive market position, you might consider granting a licence to use your IP rights. Benefits in return could be:
Royalties or other licence fee.
Gain access to someone else's IP in return.
Gain access to a particular project or opportunity.
Allow a licensee to increase awareness of your brand or even strengthen it.
Enable a licensee to develop your technology and feed back to you any improvements they create (with a licence to use them!).
Get a better understanding of the relevant market.
Keep up to date on a particular area whilst you have no current opportunities within your own organisation to use a particular technology.
See Licensing Your Creations, Technology & Brand for more on this. You may need to 'show your teeth' and start down the road of enforcing your IP rights to bring a possible infringer to the table to discuss a licence.
Early thinking about what creations, technology and brands you want to protect, where, and for how long, is essential to ensure a cost-effective approach to securing appropriate IP protection that supports achieving business goals.
Equally important is understanding the 'IP landscape' beyond your own business: what IP rights do competitors, partners, even customers hold that may block you or be used as leverage in negotiations with you? In which countries? How could this impact on your current and future business activities in those countries?
It is worth taking time to develop an IP strategy. Done properly, an IP strategy requires a good understanding of short- and long-term business goals, and may even inform decisions on the direction of the business, for example future R&D or marketing programmes.
Who decides? When you start out, it may just be you, but as your management team grows, and different departments and functions develop, it is very important to ensure 'joined-up' thinking across your business: aligned on strategy, including IP strategy. Try to set up internal processes and checks and balances to be clear who will decide what patents, trade marks etc. to apply for, what trade secrets to protect, who you will license your IP to, and so on. This will help protect the investment you may make in R&D and branding, and maximise the value you get from the IP rights of your business.
Good internal processes for managing your IP position can help you stay aligned and on top of this as your business grows, but these good behaviours need to extend beyond management to all your staff. An employee who breaches his or her confidentiality obligations and leaks trade secrets to a competitor can cause significant loss of value to your business.
Try to ensure everyone working for you is aware of IP issues, the risks and opportunities they present for your business, and what they must do to protect your business. If you are developing a compliance programme for your business, ideally you should include IP as part of it, with clear 'Dos and Don'ts' guidelines and significant sanctions against employees who do not comply.
Training for staff can help - on IP rights and the associated the risks and opportunities for the business, and on the potential impact on their own jobs if they do not comply with your internal rules on managing IP.
investors & business sales
As part of their 'due diligence,' potential investors or buyers will look very carefully at the IP assets of a business, along with all of the issues described here: oppositions, litigation, licensing, internal IP governance and compliance processes to protect and commercialise the business's IP rights and avoid infringing other people's IP rights? What is the IP Strategy of the business going forward?
Overall, they will want to understand how much value the IP assets represent, how well they are being protected and exploited and how much of a risk poor internal processes may bring, and what third party IP rights may present blockers to achieving your business goals.
See Buying Or Selling A Business for more information on the different aspects of this process.
Seeking legal advice and other help on IP matters upfront may seem a costly expense as you try to establish and grow your business, but it is a sound investment. Developing a strong portfolio of IP assets and agreements can potentially add huge value to your business by helping you protect your market position, maybe bring in lucrative royalties or other benefits via licensing, or demonstrate professionalism and serious intent to competitors, partners or investors.
In addition, appropriate upfront searches and reviews of what IP rights others have can potentially save you large costs in court fees and damages pay-outs/licensing fees to others down the line if you are found to be infringing someone else's IP rights.
Protect & profit, share with care, look before launch.
Did you know? If your business is at an early stage, it may be eligible for a government grant to fund professional IP advice on the protection and exploitation of your ideas. See Funding for more information on this.
IP help may include:
Applying to register trade marks, designs or patents
Understanding how to protect unregistered IP rights such as copyright or trade secrets
IP training to key personnel in you business
Licensing agreements, or franchising agreements
Collaboration agreements for example for research and development
Field trial or testing agreements
What to do if you want to oppose (stop or restrict) someone else's application for a registered patent, trade mark or design
What to do if someone else opposes your application for a registered IP right
What to do when someone copies you
What to do if someone alleges you have copied them
Internal IP audit for your own business
Due diligence review of the IP position of a business you are thinking about buying, selling or partnering with
IP assets valuation
IP strategy development and implementation to achieve business goals
IP portfolio management
Developing internal IP governance and compliance programme for your business as it grows
'Watch' services, to keep an eye on competitors' and other third parties' use of your IP rights in their products or services, or to be alerted to any applications they make to register their own IP rights (including domain names), in case you would like to stop them.
Third party IP rights searching and analysis
Venture Adventures co-founder Jon Moorhouse is a highly experienced business and intellectual property consultant lawyer at a regulated law firm.
Jon worked for many years in large, international law firms and then also in several global corporations, advising on issues of all sizes, from small start-ups to very large joint ventures. He enjoys providing expert legal knowledge whilst being mindful of business drivers and the broader commercial context. As managing director of a small company himself, he understands the constraints on time and resources and works pragmatically and efficiently with his clients to get them where they need to be.
He would love to help!