The three phases of IP protection for disruptive technology: Phase 1

Nic Ferrar

Nic Ferrar, of Adamson Jones, is a chartered UK and European patent attorney with experience handling technical subject matter across numerous sectors including aerospace, manufacturing, power and HVAC. He also maintains a strong interest in IP protection for software-related innovations and has successfully prosecuted patent applications in the fields of design, analysis, control, diagnostics and health monitoring.

When developing disruptive technology intellectual property (IP) protection is fundamental. The time and effort required to bring new technology to market is far greater than most people realise. Without protection in place a competitor can short-circuit all that expenditure by simply copying the new technology when it launches. This is a significant consideration for anyone involved in disruptive technology and can impact investment decisions, as well as the valuation of the company/technology itself.

So, where should you start the process of protecting your ideas? The first step is to get a deep understanding of what intellectual property (IP) you have created. This involves researching what IP rights are already owned by third parties to determine whether anyone can stop you proceeding with your plans.

It might sound straightforward to start with this kind of research, but it is very common for innovators to want to believe they have created something new without thoroughly validating it. Finding out early on that there are some IP barriers will help avoid spending money on projects that are fundamentally flawed and, even where there are smaller IP hurdles that can be overcome, can help steer initial thinking towards a more viable solution that is less prone to legal risks.

Once you have an understanding of the IP landscape you can identify what aspects of your own IP is protectable and how best to protect it. This is often referred to as the ‘IP audit’ stage. The outcome should be clear list of the different types of IP you hold and a plan for how they can be protected. Minuting any proposals for how you intend to avoid third-party IP rights at this stage can also be a useful exercise, since you will no doubt need to refer to this in the future.

It should be borne in mind that not all IP can be protected by formally registered IP rights such as patents, trademarks, and product designs. Many types of IP, such as know-how, will still need to be protected less formally by managing secrecy, carefully controlling external disclosures of technology, and ensuring adequate legal terms are in place with employees.

However, secrecy alone is rarely a long-term strategy. At some point all innovators need to take the plunge and involve collaborators to help their ideas come to fruition. When this happens, it is essential that further steps have been taken to protect your IP so that any collaborators cannot become your future competitors.

Disruptive technology development is not instantaneous, and it is important to revisit and update your initial strategy as the project progresses. It doesn’t harm to be paranoid about what your competitors are up to and to keep checking whether they have registered any IP rights or released any information that could impact your own plans.