Companies that embrace the development of intellectual property have a competitive advantage and key differentiator in the market. Leveraging intellectual property is an excellent growth opportunity for companies.
A strategy to protect intellectual property can be developed to prevent erosion of the company’s intellectual assets to a commodity. IP strategy should be aligned with a commercial strategy and may be structured to:
• allow the company to operate freely in accordance with the commercial strategy
• attract and maintain investment by developing intellectual assets
• provide a barrier against imitation of technologies and products
• build and maintain engagement of staff with IP issues by developing an IP culture.
Execution of commercial and research and development (R&D) strategies without an aligned IP strategy may damage the company.
Here are some elements that can form part of an IP strategy.
Freedom to operate
Analysis of the IP landscape often reveals that a company’s IP position could be strengthened relative to that of competitors. The IP strategy may be structured to redress the company’s weak IP position.
Steps that the company can take to develop a stronger IP position relative to that of competitors include:
• reduce the risk of the company infringing competitor patents
• filing patent applications to create strategic infringement risks for competitors.
Companies should respect, that is, not infringe, valid and enforceable patent rights of others to reduce the risk of litigation and not jeopardise company valuation.
Competitor patents and patent applications may be identified and their status monitored, and may be challenged or worked around if necessary.
Attracting investment and erecting a barrier for competitors
Sophisticated and desirable investors may be attracted by capturing and documenting proprietary technologies that:
• support the commercial and R&D strategies
• distinguish the company
• provide competitive advantage.
The company should expect others to respect their patent rights. A barrier against competitors that want to take the company’s proprietary technologies may be erected by either denying them information about the proprietary technologies (using confidential information & trade secrets) or by obtaining a monopoly (patents).
IP culture
The importance of a strong IP culture for implementation of the IP strategy should be recognised by senior management. IP culture may be nurtured by senior management, who may:
• emphasise the importance of intellectual property to the company
• provide kudos and monetary rewards to staff that engage with the IP strategy
• organise IP seminars
• appoint engaged personal to key IP responsibilities
• internally publish selected IP metric values.
• chair regular IP management meetings.
Enforcement
Defending patent rights may be central to patent strategy. The company may have regard to strategic issues before defending patent rights, including the relationship between the company and the infringer.
Brands and trademarks
Reputation drives sales. Brands and trademarks are important for establishing and protecting the company’s reputation in the market. The company may seek to differentiate itself from other company’s by having distinguishing brands and registered trademarks. The company may conduct searches for brands and registered trademarks before selecting a brand or trade mark for use.
Annual review
There may be an annual patent asset audit. The patent strategy may be updated during the patent asset audit to account for changes in the company’s patent position, commercial strategy and R&D strategies.