You have finally decided to take the plunge, leave your office job and kickstart your startup; or you’ve always known you would be your own boss and have decided to fill a gap in the market.  Before you get bogged down by all the red tape surrounding formal processes such as registering a company, there are key elements you must consider as part of your business strategy prior to commercialisation.  A commonly overlooked factor is intellectual property (IP) and how it can be leveraged to establish a presence and maximise market share.  The world is rapidly changing and issues such as privacy and data protection, sustainability, and technology have come to the forefront.  Understanding the intersection of these issues with intellectual property will inform and strengthen your IP strategy.

Why should young innovators take IP seriously?

Intellectual Property rights support innovation by allowing it to be protected and financially exploited by its originator. Intellectual property is an essential strategic asset, which when well implemented is the linchpin of competitive advantage. Ideas on their own are merely the seeds of innovation and commercialisation is the ultimate realisation of those ideas. IP rights are beneficial in so far as they increase financial benefits in anticipation of a future business objectives such as licensing and franchising amongst others. Effective protection and enforcement of intellectual property rights increases your and investors’ confidence that your innovations will be protected from copying and theft and encourages you to spend time and money on research and development.

Keep sustainability in mind – always

Through innovation, you can address global sustainability challenges such as climate change. It is important to note that sustainability transcends protecting and preserving the natural environment. It is characterised by environmental, economic, and social aspects, each of which must be taken into consideration for true sustainability. There needs to be a paradigm shift regarding the way in which you create – a more concerted move towards sustainable and environmentally friendly products and services. For example, innovations that replace fossil fuels with renewable energies, developing zero-emission transport, upcycling waste to create completely new products or creating products that cure social ills.

You might be asking yourself how “green technology” and sustainability has anything to do with intellectual property? Sustainable innovations also require a comprehensive intellectual property strategy to flourish. Patents, trademarks, industrial designs just to name a few can be registered to enable value addition and to drive up competitive advantage. The French company, Nutriset patented its method of producing an environmentally sustainable peanut-based paste to treat malnutrition in Africa. Nutriset selectively licensed the patent to local manufacturers in Africa for a minimal licensing fee, to the exclusion of larger scale manufacturers, blocking them from entering the market and competing with local producers.[1]  Now is the time to use innovations as a way to systematically move towards sustainability.

How do I create an effective IP strategy?

One of the most prudent steps you can take is moulding a good IP strategy at the inception of their endeavours.  This involves firstly doing an internal IP audit comprised of determining what IP assets you own that you can use to meet your business objectives.  It is important as an innovator to interrogate and understand which of your creations are protectable, and in which ways they may be protected (whether it is a trademark, design, patent, utility model, copyright etc).  Where you foresee entering different geographical markets, you must also consider whether your IP can be protected there and how you can be most cost effective.  For example, using regional systems such as the African Regional Intellectual Property Organisation (ARIPO) and the Organisation Africaine de la Propriété Intellectuelle (OAPI) may be more cost effective than going directly to individual IP offices in different states.

External IP audits are equally as important.  Identifying competitors and their existing IP in every market you intend to do business helps to pinpoint potential licensees for your patents and industrial designs as well as finding patents and industrial designs you yourself can buy or license to improve your existing innovations.

Looking for, finding, and understanding IP rights can be complex and so seeking professional legal help is the best way forward.  Moreover, external audits aid in avoiding infringement of the existing IP of other innovators and rights holders.  They also remove the potential of infringement actions and having to rebrand where, for example, your desired trademark is already being used by someone else or can’t be protected.

An analysis of the audits will reveal relevant costs, benefits, and risks, including whether your IP is sufficient to achieve your business needs or whether new and or different IP may be required.  The last step would be to create your IP plan, execute the strategy through blocking competitors by filing and amassing rights and thereafter monitoring and enforcing them or licensing rights to others which will generate revenue.

Other considerations: tech innovations and data

The fourth industrial revolution has given rise to the emergence of new and better technology innovations aimed at improving financial services, the climate crisis and healthcare via tech start-ups belonging to young people.  Our increasingly app-driven world also means increased data collection via artificial intelligence (AI) to improve user experience. You may be thinking of developing a tech related product or service that may make use AI and machine learning.  Data protection compliance is an important issue to address when developing an app as non-compliance may lead to high administrative fines and or criminal penalties.  Integrating data protection in the app development process, may therefore be economically beneficial in the long term and save time.  Another benefit is the application’s reputation may be enhanced, giving it a greater competitive advantage, and providing for better mitigation of potential risks such as data breaches.

Think about a fitness application.  An individual may enter their names, sex, date of birth, and weight.  The app may also capture various data about physical activity and health-related data including information about sleep quality and quantity, number of steps and distance, and blood pressure.  An individual may go further and allow access to third party apps such as Facebook and Instagram to share runs.  As all this personal information is collected, stored, and processed there are data implications and thus a need for good privacy policies by app developers and compliance with the relevant data protection laws depending on the relevant territorial application.  In the Zimbabwean context, the Cyber and Data Protection Act (Chapter 12:07) was gazetted on 3 December 2021 in line with world trends, making data protection a real and serious consideration.  As an innovator, you should always be mindful of and understand the spaces in which you in operate, including legal restraints. and opportunities in your environment.

Conclusion

When you have a good idea, it is easy to take shortcuts to reach commercialisation while overlooking the need for legal consultation and implementation of effective IP strategies.  Formulating your IP strategy should be a well-considered exercise that reflects your end goals. As a young innovator you need to keep appraised of the laws regulating your innovations, and opportunities that may arise in your environment. It is therefore of paramount importance to engage a good IP lawyer who can offer effective guidance to navigate this complex terrain.

Authored by Chido Gezimati and Kudzai Mushangwe

Copyright 22 April 2022

[1] Roberto Hernández-Chea et al. “Integrating Intellectual Property and Sustainable Business Models: The SBM-IP Canvas” Sustainability 2020, 12(21), 887.