Protect your IP and it will protect you

Gill Grassie, Head of IP Dispute Resolution at Brodies LLP
Gill Grassie, Head of IP Dispute Resolution at Brodies LLP

Businesses should ensure that their IP is identified at an early stage and that they actually own the rights that they need

By Gill Grassie

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Digital technology is developing quickly and fuelling the growth of disruptive innovation in all sectors. Med-Tech/DigiHealth, FinTech and Blockchain are just some of the buzzwords currently flying around which underscore this trend. According to a recent study, the number of FinTech patents filed worldwide continues to rise sharply, reaching 9,545 in 2016, up 6% on 2015 and 49% on 2011.

A huge amount of innovation is happening generally and the value of a business now more than ever is influenced by the value of its IP. Identifying and protecting that value is a necessity if a business wishes to be successful. IP gives a business its edge in competitive markets. It can prevent copying and counterfeits and provide an ongoing revenue stream in the form of licence fees. Third party investors want to see IP properly protected as a condition of parting with cash – whether a potential purchaser buys a business, and at what price, will be highly influenced by its IP value/ how well it has been protected.
So what steps can a company take to secure its IP?

Firstly, it should ensure that its IP is identified at an early stage, and that it actually owns the IP rights it needs to exploit and doesn’t infringe that of a third party. It should also ensure that the value of its trade secrets/confidential information is secured, non-disclosure agreements are used in discussions with all third parties at an early stage and its employees sign up to confidentiality obligations.

Once the IP is recognised how best can it be protected? If it is a brand, should a registered trademark be applied for? If so, should that trademark provide protection solely in the UK or further afield?

Brexit poses challenges where pan-EU IP trademark and design rights are concerned, but there are ways to hedge bets given its impact on the UK IP system is not yet known. Should technical innovations be treated as a trade secret or should a patent be applied for? Again, should the patent only cover the UK? Brexit will not affect the existing European patent system but may prevent longer term UK participation in the new Unitary Patent Court system which, unlike the existing one, is truly Pan-EU. Once protected a company should monitor competitors for their infringements and take action as necessary.

Ideally a business should implement a procedure to ensure that its IP crown jewels, at the very least, are properly protected to allow the business to flourish. Businesses should obtain professional advice on their IP strategy from the ’get-go’ and prioritise protection for their critical innovations. Failing to take appropriate steps early on can lead to commercial damage in the longer term. Thankfully, however, a growing number of companies are recognising the benefit of procuring expert advice and acting upon it as a priority.

  • Gill Grassie is Head of IP Dispute Resolution at Brodies LLP, which was named 2017 Scotland IP Firm of the Year at the Managing Intellectual Property Global Awards in London, for the fourth consecutive year.
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