Adhere to these 6 intellectual property (IP) rules in your product development activities to ensure that you are able to benefit fully from the resulting product:

1. Keep ideas secret

We are all familiar with those wartime posters warning that “Careless talk costs lives” and “You never know who’s listening!”. Whilst your life is (probably!) safe, it makes sense to keep any knowledge and information created during the development stage secret. The value of your new product may be prejudiced by an early, uncontrolled information leak. You may lose an opportunity to take a new product to market ahead of your competitors and you could also lose the opportunity to apply for patent protection down the line.

2. Control information sharing

Of course, in our connected world it is unrealistic to protect confidential information by simply keeping it secret indefinitely. Businesses do not exist in a vacuum and successful product development is likely to involve third parties (both from within your organisation and external third parties). For example, you may seek to establish an internal project team or to collaborate with software developers or testers, market research consultants or research and development specialists in a particular field.
You should mitigate the risks inherent in any disclosure of confidential information by ensuring that disclosure is covered contractually. If you will be sharing information with an employee, make sure that your employment contracts include robust clauses in relation to confidential information. Likewise, any consultancy or collaboration agreements with third parties should include provisions to protect confidential information.

3. Document the process

Adhering to a record-keeping culture to document R & D activities has many practical benefits. Ultimately should you decide to apply for a patent in relation to your new product, the notes may help your patent attorney in drafting you’re the application. Should you face any challenges in relation to your IP, such documentation could also prove invaluable.
In the software context, all use of Open Source Software should be documented to ensure that the relevant licence terms are complied with.

4. Be aware of the IP of others

To make sure that R & D efforts are well-spent, you might wish to conduct IP searches at the outset to ensure that any developed product will not infringe third party IP rights. To produce an infringing product might mean that you are not able to exploit that product freely.

5. Make sure any IP created belongs to you

In order to be in a position to fully exploit the intellectual property in your new product, you must ensure that you enjoy all the necessary rights in it. Where your product development process involves a third party ensure that any intellectual property created by that third party is ultimately owned by you (or licensed to you). Beware that the law relating to copyright means that if you commission a third party (not an employee) to create work, the copyright in that work will vest in that third party even if you have paid for their services. Your contracts with third parties should include appropriate provisions to ensure that all newly created IP vests in you.
Failing to deal with these issues at the outset could leave you commercially vulnerable if your product proves successful. If a third party has acquired rights in that product that third party might seek to exploit the opportunity.

6. Identify any registrable intellectual property and protect it

Consider whether your new product is eligible for protection by way of trade mark, design right or patent. If it is, seek specialist advice on how best to protect your product. In particular, consider the territorial scope of any protection taking into account any plans to exploit the product overseas.

By taking a proactive approach to managing the intellectual property in your business from the outset, including by abiding by these simple rules in relation to product development, you will maximise and protect the value in your IP.

Article by Lucy Cook of Mincoffs Solicitors LLP.

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