So you have a great idea or concept.  Fantastic!  But where do you go now?  How can you take this great idea and bring it out into the world?

Now is the time to get stuck in and prove that your idea works, and solve any potential problems with it.  This will likely involve further research and development and proof of concept.  All of this equates to a significant investment in time and resources, and  those are all great things in which to invest.  

However, I often hear comments like “we don’t want to spend anything on intellectual property until we know it is going to work”.  Companies taking this approach are picking “the egg”.  In other words, they must have a finalised or market ready idea before looking at how it will be commercialised.  

This could prove to be a costly mistake, as picking the egg overlooks the potential costs from an idea with an inherent IP risk. For example, it seems logical for companies to think “We are a research organisation so why not do research?”, but  the risk is that it could produce something that would infringe an existing patent. Therefore, any development work would be redundant, and a waste of valuable resources.

In addition, who wants to do research that has already been done?  Why not work smarter, piggy backing off the work that others have done.

Businesses often mitigate risks through tools such as insurance and currency hedging.  So, why don’t they mitigate their intellectual property risks?  The answer is that the smart ones do - They pick the chicken, in that they want to know what the end result will be before starting.

So, how do you avoid the pitfalls of an idea with an inherent IP risk?  Here are some of the key steps that you can take to help manage this risk:

1.    FTO Searching

A freedom to operate (otherwise known as an infringement search) will identify whether you can commercialise via sales or use a new invention.  The searching will need to be done in relevant markets due to the jurisdictional nature of rights such as patents.

Most importantly, an FTO search will find rights that will stop you commercialising an idea.  You can then better determine whether the project is one in which to invest valuable time and resources. Therefore, an FTO search can help you weed out those projects which don’t will be difficult to launch to the market.  

You will also be able to see what your potential competitors view as their own competitive advantages, simply because a registered IP right s generally sought for something which sets a product or process apart from the competition. This is useful information to validate your own idea against competitor’s products.  It can also help shape your on going R&D program to validate your product

There are some inherent risks to completing an FTO search.  Many countries award punitive damages for conscious infringement of a patent. Therefore, you do need to be prepared to take steps to address any potential infringement issues identified by your search.  But, at least you’re aware of the issues and can respond accordingly. 

In addition, an early FTO search will provide an indication of what is new about your idea.  This in turn helps to gauge the protectability of your idea.  This is valuable information that can help you identify a market niche and where your advantage may lie. From there, you can make a better informed decision on whether to continue with a research project.  

2.    Novelty Searching

A novelty search aims to find any document or use of an idea that has already occurred.  It therefore helps to answer the question “what is new about my invention”.  This is relevant as being new is a fundamental criteria to secure registered intellectual property rights in many countries.

If you know what is new about your idea then you can start planning your commercialisation strategy and IP strategy.  For instance, sealing a distribution deal with a large overseas partner could require registered rights to entice and control them. Therefore, it is it is critical that your R&D program will produce something which is new and protectable. Looking at this issue with novelty searching before you start a R&D project will ensure that you invest time and resources on those areas which are likely to maximise returns. 

All is not lost if a search does find relevant and anticipatory documents.  Firstly, these documents can show areas where R&D may add additional value.  For instance, you can look at issues or problems not dealt with in the earlier documents, or problems with the products which they describe.  It is these areas where you can focus your efforts to generate IP rights and an advantage in the market.

Secondly, you can use these documents as the basis for your own research, effectively meaning that you don’t have to reinvent the wheel.  Therefore, the time and resource you do commit to a R&D project are better focus.  The return on your investment is likely to be significantly increased.

So, taking some strategic IP steps early in the R&D process can lead to better business decisions and investment.  It can also produce better products that will help provide you with an advantage in the market.  Picking the chicken rather than the egg, and knowing what the end result is, will improve your chances of success.