Many businesses file for patents, designs and trade marks without a longer-term plan to re-assess the need for these Intellectual Property (IP) rights as the company develops. Whilst each of these rights has a different purpose and reason for filing, the underlying principle is the same: IP rights should support the wider strategic aims of a business. Therefore, it stands to reason that as the business evolves and the strategy changes, the IP rights should be reassessed to ensure that these assets are continually working as hard as possible.
None of us has a crystal ball and so filing decisions have to be made on the data available at the time. However, as the business develops and moves on, assessments should be made as to whether the rights are still needed. All registered rights incur ongoing costs, such as renewal fees, liaising with examiners and making further filings – costs which can be reduced or removed if the right is allowed to lapse. However, allowing the right to lapse is not the only option.
‘Open innovation’ is a phrase very much in vogue, which relates to making the most of your own IP and the IP of others. It is often said that any one company cannot employ all of the clever people in the world and so there is likely to be someone, somewhere else, looking at similar issues. My own experience has taught me that once a problem (often the driver for innovation) has been recognised, then several companies will file for patent protection for their own solution at a similar time. In some cases, filing dates of relevant patents can come down to just a few days or weeks apart. Thus, looking outside of the company, perhaps to different but related industries, might provide a useful solution to solving problems.
Or you may have IP that you no longer use, or which is under utilised. Could you make more of this by licensing it out? Or selling it? You might not want to empower your direct competitors but this need not be the case and you can decide with whom you want to deal and on what terms. You may want to license for only selected markets which are different to your own. Or you may want to divest from that product or service line entirely and not worry about the competition.
Turning to fields in which standards exist, it can be very powerful to have patents declared as essential to a standard. In doing so, you give up exclusivity on your technology but you are guaranteed a royalty income. Although the EU is re-visiting this model, it has worked well for decades and without it we would not have mobile phones, CD players, DVD players, WiFi or Bluetooth.
Solutions are getting more sophisticated and whilst many of the tactics are more suitable for larger companies, a business of any shape and size should bear these factors in mind in case any are relevant. It is worth remembering that one of the key statistics often heard is that before the information age, 80% of a company’s value was in its physical assets. Today, the reality is that 80% of a company’s value is in its intangible assets, including the IP.