SMEs are often in a risky position of not having access to professional advice or formal training about intellectual property (IP), and therefore can unknowingly handicap themselves in whether or how they use IP. As a starting point, here are the 10 things every SME should know about IP.
IP rights are an SME’s friend
IP was created to support fair business practices (for example, preventing customer confusion between brands), encourage public disclosure in exchange for limited rights, and enable a level playing field so individuals and small businesses can compete with larger companies.
SME takeaway: Don’t be fooled by misinformation or horror stories about IP in the media or from other businesses. Develop an understanding of how IP can support your particular business, product, and technology needs.
IP is not just patents, but a comprehensive set of options
There are many forms of intellectual property, both registered and unregistered. Examples include but are not limited to: patents, designs, copyright, trademark or registered mark, enabled publication, legal agreements, and trade secrets. Understanding the many forms, their advantages, disadvantages, costs, and obligations is critical to developing a portfolio of IP to protect your business.
SME takeaway: Educate yourself on the types of IP so you can develop the best mix for your business objectives and available resources.
Most IP Information is publicly available and free!
Registered forms of IP, such as patents and trademarks, are typically organized into searchable databases hosted by a registering body, like the USPTO. Additionally, there are many resources that compile information from various sources, such as freepatentsonline. These are an excellent source of competitive intelligence and technical knowledge. Read more on how to pick the right IP search approach.
SME takeaway: The information is available – make sure you use it to your benefit!
IP creates obligations
In the course of developing your products and technologies, it is your responsibility to ensure that you are not infringing anyone’s intellectual property. This means that even if you elect not to pursue IP, you have an obligation to respect others’ IP.
In terms of your own IP, you are responsible for monitoring and enforcing your IP. There is no point in getting IP if you do not enforce it. In fact, you can actually endanger your rights through lax enforcement.
SME takeaway: It is your responsibility to maintain awareness of your IP and that of your competitors.
Your market competitors are not always your IP competitors
You probably have a good understanding of your market competitors. However, your set of “IP competitors” may be a completely different group, e.g. a company may write their patents to cover multiple industries or you may discover entities that are in the process of moving into your space via their IP filings.
SME takeaway: Don’t assume that your market competitors are the only ones to worry about for IP.
IP risks rise with your geographic distribution
IP, at least registered forms, is typically managed on a country-by-country basis. Therefore if you are doing business in multiple countries, you will need to understand the rules of IP across all of these countries to be compliant and to protect yourself.
SME takeaway: Develop an understanding of the IP laws governing countries in which you make, buy, or sell your products.
The window of opportunity is slim to get IP
Ideally, you will want to protect your IP before you start using it in the public space. You can gain additional time by keeping information confidential (under agreement). Note that for patents specifically, you lose your rights immediately if the invention is made public (current system for most of the world, recent change to the US law).
SME takeaway: Ensure alignment between your technical roadmap and IP development efforts to ensure you capture IP at the appropriate times.
Patents are a negative right
Patents do not allow you to practice your invention or to have freedom to operate. Patents only enable you to prevent others from practicing your invention. This is why patent enforcement is so critical.
SME takeaway: You may need access to other’s IP in order to make and sell your products / services, even if you have IP. Professional advice is recommended here.
There are typically business solutions to IP problems
IP problems can often be addressed with a business approach instead of a legal approach. For instance, there are many types of deals to be struck… covenant not to sue, one time license, cross license, sale of asset, pay for use, etc. The majority of IP lawsuits are settled out of court in the end anyway (learn more).
SME takeaway: Consider a business approach to an IP problem or before settling on a legal solution. This may save you time and money.
IP strategies are not just for large enterprises
An IP strategy can often be a key differentiator for an SME. A basic IP strategy is generally sufficient and should start by identifying what is important in your business strategy and how you could protect/secure it with various types of IP. In addition, it is important to understand when and where you need professional advice – it’s much cheaper and easier to get advice ahead of time rather than when there is a real issue.
SME takeaway: A proactive and well designed IP strategy can help support and drive the growth of your company.