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Building a Robust Intellectual Property (IP) Strategy

Safeguarding Innovations for Competitive Edge

By Leela Madan

Building a Robust Intellectual Property (IP) Strategy

Intellectual Property (IP) is arguably one of the most important – if not the most important –assets a company owns.

This is particularly true for companies in highly competitive arenas,e.g., healthcare and medical tech. Whether you’re a startup or a seasoned, profitable business, having a strategy in place for protecting and preserving your intellectual property is vital.

What is IP Anyway?

THE FIRST STEP TO ROBUST IP STRATEGY IS TO IDENTIFY WHAT, IF ANY, IP YOUR COMPANY HAS

To do that, you have to understand what is IP. There are 4 main types of intellectual property: patents; trademarks; copyrights; and trade secrets. Patents protect inventions and designs, e.g., new medical devices, pharmaceuticals, drug delivery techniques/methods, and the like. Trademarks safeguard your brand identity, i.e., your company name, logo, slogan, and even sometimes the shape/appearance/color or even the smell of an item. Copyrights protect original works of authorship, e.g., written materials, dosing guides, software source code, educational content, etc. Trade secrets protect confidential information that provides a competitive advantage, e.g., the formula for making a new drug, a manufacturing process, or the technology behind a new product.

EVERY COMPANY HAS IP.

If you have a company name, you have IP. But more often than not, healthcare and medical tech companies also have IP in the form of proprietary processes, devices, tech, and written materials. This IP, as the name suggests, is property and therefore has value. This value can be realized in the sale of the company, by licensing or selling the IP to third parties, by enforcing against (aka suing) infringers and getting awarded damages or a license fee, and/or can be used as collateral for a loan to gain working capital for other areas of your business.

Is it expensive or difficult to protect my IP?

THE SECOND STEP TO A ROBUST IP STRATEGY IS TO GET OVER ANY INSECURITIES OR MISCONCEPTIONS YOU MAY HAVE ABOUT IP.

That is, many entrepreneurs think IP is intimidating or scary for a variety of reasons, such as, it’s too complicated, it’s too expensive, it’ll take too much time/effort, it’s too hard or expensive to enforce against infringers, etc. All of these concerns can be overcome by working with a reputable, licensed IP attorney with a good track record. 

 

While it is true that protecting your IP can be complicated, an experienced IP attorney can help you navigate those waters with ease. A good attorney will make things easy to understand and will advise you how best to protect your IP, whether it be by patent, trademark, copyright, or trade secret protection.

 

Cost is always a concern, no matter what area of your business you’re looking at, and in particular when talking about anything legal. Further, people are often intimidated to talk to an attorney because they are afraid of getting a large bill for even a short conversation. The best way to overcome this is to do your due diligence and research the attorney before you call them. Check their reviews on Google and other online. By Leela Madan SPRING 2024 platforms such as Super Lawyers. A reputable IP attorney should have a good online presence with client testimonials readily available. In addition to that, they should clearly communicate to you if something is billable or not. But, that being said, before you book a consultation with an attorney, you should always ask if the meeting will be billable or not and how/when you’ll be expected to pay for that consultation.

 

If your fear is that enforcement will be too difficult or expensive, that’s also something to discuss with an IP attorney. Depending on what type of IP you have, there may be different options available for enforcement. For example, many online platforms have made it easy to get infringing content removed from their platforms by simply submitting your IP registration certificate(s) to them using their free online takedown forms. This is an easy and free way to get infringing content removed without having to file a lawsuit or wait a long time for a judge to issue an order. In other cases, litigation may be necessary, but could prove to be quite profitable. For example, if a large company infringes your IP, you could sue them for infringement using a law firm who takes your case on contingency, meaning you don’t have to stress over expensive legal bills but you get to benefit from a large judgment or license award.

How can I disclose my IP without fear of it being stolen?

THE THIRD STEP TO A ROBUST IP STRATEGY IS TO BE SMART ABOUT TO WHOM YOU DISCLOSE YOUR IP.

Oftentimes, entrepreneurs are fearful to disclose their IP to a manufacturer or even to an attorney because they fear the recipient will steal their idea. If this is a concern for you, ask the recipient to sign an NDA before the meeting. A reputable attorney or manufacturer should have no qualms or reservations about signing an NDA. And, always follow your instinct! If your spidey senses are tingling when you talk to someone and you think they can’t be trusted, don’t disclose your IP to them. As mentioned before, do your due diligence before you meet with anyone to whom you plan to disclose your IP: run a Google search and check their online reviews. If they are an IP attorney, check their standing with the USPTO and look to see if they’ve ever been suspended or had a grievance filed against them. Check the Better Business Bureau (BBB) for online reviews of manufacturers or online vendors. Be smart and don’t disclose your IP without first doing your due diligence. Remember, a dose of prevention goes a long way!

Can I just do this all myself?

THE FOURTH STEP TO A ROBUST IP STRATEGY IS TO FOLLOW THE ADVICE OF EXPERTS AND NOT CUT CORNERS BY TRYING TO DO THINGS YOURSELF OR JUST "DO THEM LATER" (AKA NEVER).

Many entrepreneurs and startup CEOs pride themselves on being able to figure things out and do them themselves. In many cases, this is a good thing! But some things need to be left to the experts. Yes, you can file your own patent or trademark application, and maybe even get it registered, but if you make a mistake in that feeling, it could burn you later. For example, if you file a patent application too late because you’re not aware of the timeline set forth by the statute, then the resulting patent could be invalidated by a future infringer when you sue them. Similarly, if you file your own trademark application and make a small mistake in the filing, even if it somehow registers, the resulting registration could be invalidated by a future defendant who you sue for infringement. A patent attorney will advise you on when, where, and how to file your patent application, and you need to listen to their advice, because in the world of patents, timing is key. A trademark attorney will advise you on what you can and can’t register as a trademark, what type of declarations to make, and how to preserve your trademark against dilution and/or tarnishment. By following the advice of these professionals, your IP registrations will remain valid longer, stand up to scrutiny, be useful tools against infringers, and be valuable assets that your company owns.

"...in the world of patents, timing is key."

 

IP is valuable. Don’t squander it by burying your head in the sand and avoiding it altogether or by trying to figure it out on your own. To learn more about how to identify, protect, and create a robust strategy for your IP, please visit us at

www.madan-law.com and/or on social media @madanlaw and @youripattorney or reach out to us at (713) 364-4796 and one of our licensed attorneys will be glad to help you.

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