There are many steps
to constructing an effective IP portfolio and strategy. An IP portfolio and
strategy can enhance the value of any business but most importantly
startups. In the initial stages of business, documented differentiation
can make the difference between getting funding or closing the doors.
Having a realistic strategy can mean the difference between defending your
business against infringement and monetizing you IP.
Patents protect an
inventor’s creation, while trademark protection safeguards distinctive words,
names, symbols, sounds and colors used to distinguish products and services of
one business from another. Property that qualifies for copyright protection
include literary works such as books and computer programs; dramatic works and the
accompanying words; pictorial, graphics, photographs and sculptural works;
motion pictures and audiovisual works; and sound recordings and musical works,
including music from plays and dramatic readings, and recordings.
Inventing a product or
service is the first step for any company. Developing a portfolio requires
obtaining the appropriate intellectual property protection and understanding
the processes by which you will protect you intellectual property. With a
well-developed IP strategy, you can protect your company’s inventions and
creative work, keeping tabs on how to allocate resources and when to explore
new research and development opportunities. Here are five steps that can help
you develop your own IP strategy:
1. Let your company’s
size guide you
First, your company’s
size and structure should guide your IP strategy. For defensive purposes If you
have a small company with only a few employees working on an invention you
might not need a formal IP strategy. A larger company would be wise to develop
a detailed IP strategy. One of the most important areas to clarify is ownership
rights and publication policies. The strategy should take into account previous
agreements between the company and employees (or contractors).
Larger companies may
want to outline the roles and responsibilities of managers and employees in
managing and disseminating the company policy regarding intellectual property
use to ensure everyone follows the proper procedures that will maintain the
company’s intellectual property rights.
2. Establish
guidelines for creating intellectual property
Decide how the
intellectual property will be created. You should list each person involved in
creating the work, then outline exactly what type of intellectual property
protection you are seeking. A search of prior art will become crucial to
the development of your IP to ensure you don’t infringe on someone else’s IP.
Requesting professional help to conduct a search is probably the better option.
Your IP strategy should take into account whether or not the company can afford
this preliminary intellectual property search. In addition, you should hold
regular meetings to devise a plan of attack for creating your intellectual
property. Taking into account the time for research and time to market.
3. Analyze your
competitive advantage and barriers to entry
One of the first
questions you should answer before you invest in creating any kind of
intellectual property is whether or not you can reap the rewards of your work
in the marketplace. Would your invention, brand or creative work give you a
competitive advantage in the marketplace? You’ll need to do your research to
see what’s out there and evaluate if you could capitalize on your work. The
market climate for your product or service will dictate how and if you develop
intellectual property as well as which kinds of intellectual property to
develop.
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You can gain a
competitive edge by understanding and overcoming any barriers to entry, which
include the following:
- Are there key personnel who might impede the process?
- What is the cost to develop the product or service and get it to market
- Will the product or service require regulatory approval?
- Are there any competitors who offer a product that’s similar to yours or are you the first to offer this type of product?
4. Understand
third-party interactions
Problems and
misunderstandings that may arise from third-party relationships are one of the
surest ways intellectual property can be lost. Any third parties who could
potentially be involved in any portion of the development of the product or
service being protected should be considered in developing your IP strategy.
Third parties can include employees, suppliers, partners, contractors and even
customers. Your IP strategy should dictate any employee contracts, supplier and
contractor agreements, confidentiality agreements and licensing options.
5. Review your
intellectual property
The scope of
protection of the intellectual property should also be included in the
intellectual property audit to determine whether there may be any gaps in
protection or risks in the development and intellectual property protection
process. Monitoring what is going on in the market place and what the
competition is doing is crucial.
Companies of all sizes
can spend a lot of time on developing a product or service. An equal amount of
time should be spent on developing your IP portfolio and strategy to ensure the
maximum return on your intellectual property investment.
Len Goldstein, Denver Business Attorney at Law
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