The variety of innovative ideas and business concepts among the 600-plus applicants for this year's Digital Top 50 awards was impressive. It reminds us that for startups – especially for those operating in the digital and tech space – intangibles are typically their most valuable assets, heavily affecting these businesses’ fundraising efforts and valuations.
Here's where intellectual property rights (IPRs) come into play. IPRs protect intangible assets from being used unlawfully and give the IP’s creator a competitive advantage in the marketplace. But navigating IP protection can be challenging, as different IPRs protect different things: patents protect new technical inventions, design rights protect the visual appearance of products, and trademarks protect certain distinctive signs – not only words or devices but also 3D visualisations, sounds and multimedia signs.
These IPRs need registering, and have to meet certain requirements, such as being novel or distinct. But protection is also available without registration: literary, musical and visual works, and even software code may be copyrighted automatically. And some things – such as ideas, know-how, and critical technical and business information – are better kept confidential and protected as trade secrets.
Finding the right approach to IP is tricky, as new technologies like artificial intelligence and the data used in this context do not fit easily into the established IPR regime. That's why, for startups in particular, a smart and sustainable strategy for protecting the intellectual property, know-how and data around intangible assets is critical.
Here are five key considerations to watch out for:
1. Know your business and think about IP early on
Identify and categorise your business’ most valuable intangible assets, and understand how you can best protect them. Innovative products may qualify for different kinds of IP protection, so you need to evaluate what's the best method.
Don’t forget: in IP law, it's always ‘first come, first served’.
2. Watch your competition
Patents, utility models, design rights and trademarks are only available if no prior conflicting rights exist. So you need to understand what is currently ‘state of the art’ and screen the market for prior rights before registering your IPRs.
Even after you’ve registered your IPRs, you should monitor the market (perhaps with the help of professional watch services) to spot potential infringers.
3. Every IP right starts with a secret
Current trade secret laws, such as the EU trade secrets directive, offer a good level of protection, but they also require businesses to adequately protect their IP. So in the early stages of developing a new product or service, you should keep all ideas, information and know-how relating to inventions and novel concepts confidential by having tight controls.
One common method of protecting innovations is by having staff sign non-disclosure agreements. But you should also put in place physical, technological and organisational measures, such as having access restrictions, black-boxing development teams, introducing firewall and encryption technology, having IP policies and training staff.
4. Don’t forget about data
For many innovative businesses, generating and processing data is at the core of their business model. But data can’t typically be protected by IPRs, so contractual safeguards are key!
You also need to comply with data protection laws, such as the EU's GDPR, when dealing with personal information.
5. It's all about documentation
To protect yourself against third-party claims and know-how theft, you should thoroughly document your innovations. Should a dispute arise, you will need evidence to prove the ownership, integrity and priority of the IP and know-how, which in turn should increase your chances of a positive outcome.
In short, even though your business may have limited resources, taking a professional approach to IP is worth it – and should be prioritised as early as possible.
Freshfields is at the forefront of the developments around IP, data and digital technology, advising our clients on the opportunities and risks that flow from digitisation and harnessing the power of digital technology to rethink the way we deliver our advice.
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As part of our commitment to technological innovation, we also sponsor the Digital Top 50 awards, in conjunction Google, McKinsey and Rocket Internet.
The DT50 awards aim to bolster Europe’s thriving tech scene by rewarding the bold and trailblazing work of the entrepreneurs behind the continent’s most promising startups.