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Part 6 - Mistakes to avoid making with your IP: things you need to know from the get go

As with anything that you want to do well, getting to grips with the ins and outs of intellectual property (IP) and the ways in which it can be leveraged in your business requires a combination of curiosity, constant learning and the right advice and expertise at the right time.

For some entrepreneurs and business owners, rookie mistakes can lead to lessons being learned the hard or expensive way.  The good news is that there are ways to avoid some of the more common pitfalls.

Here’s our top 10 list of things you need to know from the get go.

1. Keep quiet

For some forms of IP protection timing is everything. As a rule, keep things quiet and don’t be tempted to publish, publicise or promote prematurely.  The cone of silence isn’t just a pithy phrase that gets bandied around in IP-land.  It serves a very real purpose.

2. Apply the ‘value’ litmus test

When developing IP of any form ask ‘how is this adding value to my business or value proposition?’  Aim to always align activities and investment to your strategy and apply the ‘value’ litmus test to make sure that what you’re protecting is worth protecting.

3. Use non-disclosure agreements

Don’t be afraid to ask a potential partner or supplier to sign a non-disclosure agreement (NDA).  This will help set expectations of both parties from the outset.  If the other party refuses to enter into a confidentiality agreement then you may want to revisit if they are the kind of person or company you want to deal with.

4. Keep good records

Keep accurate, complete records of IP creation, ownership, and transfer. It’s good house-keeping and you never know when you may need them – especially if you need to rely on rights to copyright.

5. Read the fine-print

A lot can happen pre-money, pre-launch or pre-market validation. You might sign up to become a member of an incubator, apply for government grants or funding, talk to investors, forge supply arrangements, or all the above. Be careful to read the fine-print of any contracts you sign in the process as some will most definitely contain terms or conditions around intellectual property.  Remember to be circumspect and only share what is essential or covered by confidentiality clauses.

6. Take a broad perspective

Be careful not to rely solely on a single form of IP protection.  Take a broad view of your intangible assets and think about the entire value chain or product lifecycle.  There may be hidden gems lurking in your know-how, the expertise of your people, or your way of doing business.

7. Search and research upfront

If your value proposition is built on an innovation or invention it’s a good idea to conduct a search of existing patent literature prior to investing a large amount of money or effort in R&D.  This may save you from wasting valuable resource or potentially avoid infringing the rights of others.  It can also illuminate the competitive landscape.

8. Control confidential information

Manage and control the distribution of your ideas and know-how – internally and externally – with appropriate agreements and policies.  Theft of trade secrets can happen, and if you don’t have the right contracts in place with staff, contractors or third parties, you can inadvertently lose control of your IP through accidental or malevolent means.

9. Own the process

Take ownership of the process but don’t take this to mean IP is DIY territory.  You may be able to carry out some aspects yourself such as preliminary searching or research, but there are risks to this approach.  If you’re serious about your IP and its value to your business invest in expert help - it will more than pay for itself in the long-run.

10. Be proactive

Proactively manage and enforce your IP rights.  A bit like car registrations or subscriptions, some IP rights need to be renewed at regular intervals to be maintained.  Others need to be used to remain valid.  Some, like patents and copyright, have fixed durations and either need to be replaced or updated.

There’s a saying that goes along the lines of ‘when we know better, we do better’. Apply that to how you approach intellectual property and your business, and you’ll be in good shape. 

Ceri Wells is a founding partner of national intellectual property law experts James & Wells. He has been involved in patent drafting, litigation, trade mark ownership, unfair competition and copyright matters for around 30 years and specialises in working with start-up companies, venture capitalists and seed-funding organisations to encourage and commercialise NZ innovation. For more info visit www.jaws.co.nz or email Ceri at ceriw@jaws.co.nz

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