BPE Solicitors look at methods for unlocking Intellectual Property

All businesses have intellectual property rights. However, due to the intangible nature of these rights (the most common being patents, trade marks, designs, copyright and know-how) many fail to identify these rights and therefore fail to attribute value when appraising their business or considering new commercial opportunities.

One easy method of unlocking a business’ IP is to carry out regular IP audits.

An audit will not only identify current IP, but also identify future IP and any possible risks (such as litigation, dilution of a brand, or third-party challenges for non-use) that may exist in the business’ asset portfolio. For future investors, audits also allow third parties to quickly visualise the prospective business’ IP portfolio and any corresponding value.

For business owners, audits could serve to increase value and allow the business to commercialise and exploit new rights that were identified in the process – which could drive growth and expansion.

In 2020, the UK Intellectual Property Office saw an increase in applications for patents, trade marks and design rights.  Trade mark applications reached record highs and this is considered to be as a result of the COVID-19 pandemic and the UK’s exit from the EU.

Are you considering registering your IP rights? If not, it inevitably means that those applicants are potentially obtaining a silent advantage over their competition.

Do all IP rights need registering?

Not all rights need to be registered to enable owners to enforce them. For example, copyright, unregistered designs, know-how, confidentiality and goodwill are all capable of existing (subject to such rights being capable of subsisting in the first instance) without registration with the relevant Intellectual Property Office. The key is to be able to identify such rights, which is where IP audits are valuable.

However, sometimes it is vital that businesses register their rights – this is to avoid cyber-squatters getting past the post before the business owner. If this was to occur, businesses could easily find themselves exposed to infringement and the possibility of an expensive rebranding process all because IP was not recognised and registered in the correct way.

Protect

Protecting ideas and assets early is crucial to maintaining a commercial advantage.  It can provide security when obtaining funding for R&D and/or capital investment. However, businesses should consider the value of Non-Disclosure or Confidentiality Agreements when discussing IP rights with third parties (funders, commercial partners, suppliers) as this is when an idea is most vulnerable and starts to become more visible to others. It is prudent to extend the duty of confidentiality to all employees and consultants.

If going to market, be mindful that securing registered IP rights takes time, so businesses should factor this into their market release timetable to avoid being exposed to infringers who are keen to get products, without IP protection, designed, manufactured and this process can happen rapidly and without any detection until it is too late.

Review

Putting a strategy in place is helpful but it must be regularly reviewed.  Key personnel may change leading to knowledge gaps or resource issues.  A periodic IP audit will help to identify any gaps in protection, opportunities for future development and the chance to check that all your IP assets are actually still worth protecting.  This review process will also sense check that the IP strategy aligns with wider business objectives.

For advice on how to use and protect your IP strategically, contact Riyaz Jariwalla at on riyaz.jariwalla@bpe.co.uk or call 01242 300792

www.bpe.co.uk/for-business/intellectual-property/

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