UK businesses are fighting for survival during the continuing COVID-19 outbreak and trying to trade under difficult conditions, the likes of which haven’t been seen in the living memory of most business people. If you’re afraid that your business is going to the wall, it probably isn’t the top of your mind to pay for a patent application for your new technology or a registration of the trade mark for your brand new clothing range, right? Where is the money coming from to invest in such luxuries as IP, we hear you say, when staff are being furloughed and orders have been postponed?
Unfortunately (or fortunately, depending on your point of view) the truth is that protecting your products, ideas and brands with legal IP rights is not a luxury, not even in these sanity-challenging times. It is important for managing the strategic risk to your company, for example:
- You risk damaging your post-COVID-19 crisis business recovery
In May 2019 a joint research study conducted by the EUIPO and the EPO reported that SMEs which have filed at least one intellectual property (IP) right are 21% more likely to experience a growth period afterwards and are 10% more likely to become a high-growth company than those without IP rights applications. SMEs have the greatest opportunity of rapid growth by having a portfolio of IP instead of applying for a single trade mark or patent. In fact, having such a portfolio boosts their chances of high growth by a third. There is no reason to believe that this will not also apply in the current crisis, although the pain of investing in IP may be great at this moment in time, the rate and extent of bounce back post-crisis could be worth it.
- You risk not being able to achieve your medium to long term business goals
A successful business needs a comprehensive, well-thought-out business plan and it’s a fact of life that things change and plans can sometimes become outdated very quickly. This is strategic risk. If you do not invest in IP when it is needed, you risk others stealing it or registering IP rights in similar areas that will prevent you from using yours once the COVID-19 crisis has passed. In fact, if the IP is essential to your business goals then you run the risk of not being able to deliver on your business plan.
- You risk missing out on increased company value should you want investment
Having your IP assets locked down can be a key requirement for investors. IP can also add to the overall value of your business should you be looking to sell or merge with another company.
So what do you need to do regarding your IP in times of business crisis?
- Have your COVID-19 risk management plan in place across all your business operations
It’s vitally important that you identify, assess and mitigate the risks that COVID-19 brings across all of your business functions. You cannot take steps to protect your business, including your IP assets, unless you have this in place and know what you are going to do.
- Include your IP in your COVID-19 risk management plan
As part of this risk management plan you need to identify your IP assets and assess whether they are business critical. Being business critical means that the IP assets are essential to the delivery of your business goals once the COVID-19 crisis is over, and perhaps even during the crisis.
- Mitigate the risk of losing your IP
If an IP asset is regarded as business critical you need to lock it down and protect it, even if it means acting during the COVID-19 crisis. You may already have IP rights in place for these business-critical IP assets and if so, you need to ensure that you invest in them to keep them alive. You risk the viability of your business going forward by not protecting business-critical IP; it’s that simple.
- Identify financial support for IP
Support for businesses has been made available as part of the Business Interruption Loan Scheme, so check out funding that may be available and used to pay for protection of IP rights. If you use an IP firm, see if you can negotiate a payment plan with them. If you don’t have an IP firm, shop around. Speak to several IP firms to get ideas about how they operate, their knowledge and expertise, costs and their flexibility. Ask for references.
The businesses that are most likely to survive the COVID-19 crisis will be the ones that have good risk management plans in place and who are creative about seeking solutions that protect business assets for the short, medium and long term. IP is an asset that has a real value and should be in the list of your high priority assets to take care of, with no exception.
Wynne-Jones IP can offer you advice and guidance on all aspects of protecting your business-critical IP assets during this difficult time and beyond. Contact us if you want a friendly ear and good advice.
Does owning IP rights improve economic performance?
A recent study performed by the European Patent Office (EPO) and the European Union Intellectual Property Office (EUIPO) has shown that companies which own at least one patent, trade mark or registered design generate on average 20% higher revenues per employee and pay their staff on average 19% higher wages compared to companies that do not own any of these intellectual property (IP) rights.
Let it go!
Keeping an IP budget afloat despite sunk costs.
The cost of securing IP can be heavily front loaded. Examples of such costs include patent drafting, pre-filing searches, filing fees, etc. These costs become “sunk” costs in that they cannot be recovered. Because IP protection can be a relatively long process, at any time during the process there are likely to be significant “prospective” costs: future costs that may be wholly or partially avoided depending on actions taken.
Videoconferencing: the future of oral proceedings at the EPO?
The European Patent Office has announced that videoconferencing will become the norm for oral proceedings before examination and opposition divisions until at least 15 September 2021. But is this a taste of what the future holds for oral proceedings at the EPO?
EPO-CNIPA pilot for International Search
On 12 November 2019, the EPO and CNIPA agreed to enhance their bilateral co-operation to give patent applicants filing an international patent application in English at the CNIPA, the choice to opt for the EPO as their ISA. A two year pilot programme launched on 1 December 2020, offers applicants filing international applications with the CNIPA or the International Bureau (IB) of the World Intellectual Property Office (WIPO) the opportunity to select the EPO as their ISA and as their International Preliminary Examining Authority (IPEA), rather than CNIPA.
Changes to trade mark and patent law in Gibraltar
In October 2020, the UK Government declared that the territorial effect of five important IP treaties would be extended to cover Gibraltar from 1 January 2021. These treaties are the Paris Convention, the Patent Cooperation Treaty, the Madrid Protocol (on International trade marks), the Nice Agreement (on trade mark classification), and the Berne Convention (on copyright). Following on from this, a bill was passed in on 11 December 2020, making some amendments to trade mark and patent law in Gibraltar.
Much Ado About Nothing
For a long time, a source of tension among UK trade mark and design attorneys was the fact that the UK was one of the few EU member states to abide by a decision to allow attorneys from any European Economic Area country to represent clients in proceedings before any national office of an EU member state. With this in mind, one of the ironies of Brexit is that, from 1st January 2021, UK trade mark and design attorneys will (in general – please see below for a super-important exception!) lose the right to represent clients before the EU IPO