New Year’s resolutions aren’t just for one’s personal growth. In the new year, your company also has an opportunity to become the best version of itself.
Here are six straightforward steps you can take to better protect your ideas and innovations…all less arduous than the Whole 30 diet:
Train engineers and front-line innovators on intellectual property protection. Training your engineers and front-line innovators on IP can pay big dividends. Training allows companies to harvest and monetize IP, identify threats to the core business, evidence the company’s innovation and reflect timing of inventions, which in turn can deter future lawsuits. We recommend a yearly summit to engage in training and check in on developments.
Explain the value of IP to your C-suite and board. Training isn’t just something we recommend for technical employees. Educate your company’s leadership too, so they better understand not only the components of IP (like the differences between a trademark, design patents and utility patents), but also why it’s important. Having a greater awareness of the role IP plays in the company helps business leaders with their planning throughout the year and the value of IP to thwart litigation.
Assess your IP portfolio for the long play. Conduct regular audits of your IP assets. Is your company protecting its core innovations with utility patents? Did you re-design your graphic user interface or core product and need to investigate a possible design patent? Is your core branding protected by trademarks? A check-in at least once a year — or twice a year, depending on your company’s size — can help you stay on top of your IP and help you ensure you are not forgetting to capture new assets. When things get busy, it’s easy to put IP on the back burner. Being deliberate about protection will serve you well in the long run.
Get sticky – create a web of protection. Once you’ve audited your IP, you should have a fuller picture of your current protection. Now expand on that: How could you build new layers of both protection and complexity? For example, do you just have a utility patent for an invention, but not a design patent for its interface? Having both could thwart potential infringers and make potential plaintiffs think twice. It’s also important to think about copyright and trade secret protection. Are you protecting your content, graphics, and media with copyrights? Have you updated your trade secret policies given remote work or a new technology deployment?
Build your IP infrastructure. Developing an IP strategy to align with your company’s goals is a good way to start the new year off on the right foot. Consider your company’s specific context — are you a startup seeking acquisition? A market disruptor? A large company? Each has its own IP needs and a plan tailored to them will help guide your company in managing its IP.
Prepare for conflict. During 2020, patent case filings increased by 13 percent, according to Lex Machina. Although complete data is not yet available for 2021, activity was up in both of the first two quarters. Meanwhile, we anticipate significant activity in trade secret and non-compete litigation, as companies are disrupted by both The Great Resignation and new remote working policies.
Resolve not to be surprised by litigation; instead, take steps now so that when conflict arises, you can focus on strategy, not logistics. Whether you are on offense or defense, a litigation readiness plan will help you save time and minimize your risk of procedural errors (and vulnerability to possible hijinks from your opponent). Such a plan should address key logistical components, including legal hold triggers; needs and protocols from other business units, such as IT or Compliance; policies and procurement methods for electronically stored information; and more.
Overall, the field of IP may be unpredictable in 2022; in patent law alone, we may see a landmark U.S. Supreme Court case about patent eligibility, a new U.S. Patent and Trademark Office director and potential legislation to expand patent challenges at the PTO’s Patent Trial and Appeal Board. While the exact terrain may be uncertain, with some proactive steps in the first quarter – training, portfolio protection and organization – you can set up for solid footing.
Megan Redmond is an original member of Erise IP and a first-chair intellectual property litigator. She can be reached at megan.redmond@eriseIP.com.
