One of the fundamental questions a company must ask when dealing with intellectual property is what it is specifically dealing with. More and more companies are knowledge-based these days, and therefore this know-how needs to be strategically protected.
If intellectual property is an issue in your business, be sure to find an expert, preferably a patent attorney and business advisor. Consult with them on your IP protection strategy to best fit with your business strategy. Focus on two key questions – what know-how to protect and how to protect it.
It is important to remember that intellectual property takes many forms, far from being just patents. It’s also client databases, utility models, copyrights, trade secrets, licenses, source code, trademarks, etc. Even seemingly “common” non-disclosure agreements for your employees, partner universities or external collaborators are a bare minimum, but often underestimated.
“From the perspective of a technology company, it is important to patent the main element of your innovation. The next step may be to patent the part of the product that is visible so that copying can be monitored. Patenting too much or not at all are two extremes that I cannot recommend. The quality of the patent also plays a big role, it should ensure the widest possible scope, cover future variations of the product and at the same time ensure maximum blocking of competition. One option when you can’t patent your product or don’t want to for strategic reasons is to publish it or file a patent application, but not seek the patent itself. The patent will then become public knowledge and no one will be able to claim rights to it,” explains Liliana of the different strategies for accessing patent protection.
Intellectual property is a topic that unfortunately abounds with many myths. Here are the most common ones.
Myth I. Intellectual property, the paperwork around protecting it and the whole process will keep me out of business:
You may think you are saving time and costs, but a poorly protected product or know-how can be fatal to your business. We recommend that you set aside a portion of your product development budget for quality FTO analysis and preparation of your first key patent.
Myth II. Intellectual property consists only of patents.
Patents are a great way to protect products, but intellectual property also includes client databases, utility models, copyrights, trade secrets, licenses, source code, trademarks, and even cybersecurity. It would be a shame to neglect the complexity of IP. You can be a knowledge company without patents.
Myth III. A patent will reveal your know-how to your competitors.
Once the legal deadlines have passed, the patent will actually be published. You may be at risk if your patent does not sufficiently define your patent claims. Otherwise, you can create a near-monopoly position. All patents are not equal.
Myth IV. The product must be brought to market quickly. Rather than deal with patents, I’d rather start selling.
Of course, if your product has a short life cycle, it’s not worth patenting. Likewise if you want to protect certain know-how for more than 20 years (e.g. a recipe). Still, you should be sure you are not infringing third party rights (FTO) before you launch your product and, if your invention is patentable, file a patent application before you actively market the product.
Myth V. My solution is not patentable, so I have no way to protect my know-how.
It is true that source codes, mathematical methods or business activities cannot be patented under Czech (European) law. The method of protection can then be trade secrets or copyright. It is still worth consulting an IP specialist.
Examples of good practice? Here are a few:
- Be clear about what assets you want to create value for your company.
- Transfer all IP that was created before the company was founded from the authors (founders) to the company.
- Surround yourself with an expert team including a patent attorney, accountant, lawyer and advisor.
- Define the core knowledge behind your products and services.
- Handle the transfer of IP rights from external collaborators (“IP lawyers”). Vet your employees, especially if they do not have valid NDAs with competitors..
- Coordinate IP strategy with business development, fundraising and marketing.
- Include technology scouting and trend forecasting among your strategic activities before the growth phase/investment round.
Source and illustration: czechstartups.org