Commercialising your Intellectual Property – 3 tips

Intellectual Property (IP) is a valuable asset for businesses. It may be, however, vulnerable to infringement or unauthorised use if it is not correctly identified and protected prior to being commercialised and exploited.

Here are 3 things that all start-ups, founders and business owners should think about in terms of commercialisation of valuable Intellectual Property (IP).

1. Identify

Businesses create and use IP as part of the everyday running and management of their operations. Identifying the IP owned by the business is the first step you should take to ensure it is adequately protected.  There are a number of different IP rights under New Zealand law, some of which must be registered, while others exist without registration. The table below summarises the types of registered and unregistered IP:

Examples of what type of IP a business might own can vary and cover many different things. It's important to think through your business operations as well as the output from your business when identifying your IP. Examples of what IP in a business might look like include:

• brand name (trade mark)
• packaging (design / copyright)
• method of manufacture (know-how)
• secret recipe (trade secret)
• commercial strategy/data (confidential information)
• product (patent).

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2. Protect

Once you have identified the IP in a business you will need to assert your rights and ownership in it. This can be done in a number of different ways depending on the type of IP and the circumstances.  

For Registered IP rights, you can make an application to the Intellectual Property Office of New Zealand (IPONZ) and, provided specific criteria are met, progress your IP through to registration on the appropriate IPONZ register.

For unregistered IP rights it is important to document the creative process to ensure you have the evidence and a paper trail to prove authorship and ownership of the IP so you can assert these rights when needed. Other IP can be commissioned, created as part of someone’s employment or the result of a joint venture.  In these circumstances it would be wise to have contracts in place to record the relationship, authorship and subsequent ownership (by the business) of the IP concerned.  

3. Exploit

Once you have identified and protected the IP in the business then it’s time for your business to exploit and realise its value. For some businesses, this can be achieved by establishing and building goodwill in the IP itself - actual and constant use of the IP, strong marketing and promotion and ensuring a consistently excellent product or service will increase value in the IP as a business asset.  

Licensing of the IP is another option - whereby you allow other businesses to use your IP in return for a royalty or license fee on terms set out in a Licence Agreement.  

Finally, your business may want to consider selling the IP and moving on to new creative challenges - in which case before ownership is transferred it will be important to ensure the IP can be clearly identified and ring-fenced from your business, is adequately protected and there are no potential ownership or infringement issues.

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Author: Sonya Hill

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