Intellectual Property: Valuing your creative effort

Is your business making the most of its intangible assets?

Intellectual property or IP refers to the products of your intellectual sweat and creative effort. It can encompass the new software you have developed, the catchy name of your business or your secret recipe that rivals the “11 secret herbs and spices”.

It is easy to overlook these intangible assets in the busy day-to-day of running a business. However, not protecting such key assets, or ensuring you have the right to prevent others from using them, can be devastating.

What can you do to safeguard your IP and increase its value?

Identifying

The first step is to identify the IP that is central to your business.

There are many different types of IP. The easiest to recognize are those that can be registered, for example:

• inventions can be registered as patents;
• brands and logos can be registered as trade marks; and
• the unique visual appearance of a product can be registered as a design.

However, there are other unregistered forms of IP that might still be protected, such as copyright in your operations manual, or the right to keep your trade secrets under wraps.

A good starting point is to think about the aspects of your business that are original and that you would least like to see a competitor copying. There is a good chance that these can be protected.

Clearing

Once you have determined the key IP assets of your business, the next step is to make sure you are not stepping on anyone’s toes. You do not have to be deliberately copying someone else to be infringing their IP and “But I didn’t know” will not get you very far.

There is nothing more upsetting than spending months developing a new product and pitch only to receive a cease and desist letter shortly after launch.

With the help of a good IP lawyer there are steps you can take to be reasonably confident you are in the clear. As is often the case, a little prudent investment up front can save you a great deal of money in the long run.

Ownership

Just because you came up with the idea or paid someone to develop the idea does not necessarily mean you own the IP.

If you are an employee and came up with the idea in the course of your employment, then your employer might own the IP. If you have engaged a software developer to turn your new idea into code then you might need the developer to assign the copyright over to you.

If you are unsure, a clear statement in a signed contract is usually a good bet.

Safeguarding

There are lots of different strategies for protecting your IP and it is important that you choose the right one for your particular assets as well as your budget and business.

Registering patents, designs and trade marks can be an excellent way to safeguard some types of IP and turn intangibles into more easily recognized assets. However, registration is just one tool in the IP toolbox.

If you are a start-up working on some new technology but you are not ready to file a patent application, the most valuable tool for you might be a non-disclosure agreement. This is because if your invention is made public too soon you may not be able to get a patent. On the other hand, some businesses choose never to file a patent, preferring to keep the technology as a trade secret.

Again, an IP lawyer can help you design a strategy that will give you the best bang for your buck.

Enforcing

If the worst does happen and you see your IP being exploited by another business, all these steps should put you in the best position to take legal action and defend your rights.

However, even if you are a little late to the game, and have not taken steps to formally protect your IP, you might have more rights than you know.  It is always useful to have a chat with an IP specialist to see what they can do.

HWL Ebsworth has considerable experience dealing with all aspects of IP protection and enforcement, and your Pretium Solutions business advisor can put you in touch with the right person to help you.

By Gina Tresidder, Special Counsel at HWL Ebsworth Lawyers

Important disclaimer: The material contained in this publication is of a general nature only and is based on the law as at 21 April 2017. It is not, nor is intended to be, legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.