Instead I thought I’d write about what we mean when we talk about IP. Historically at Rapid Innovation, IP has been about the strength of the patent portfolio which we felt automatically granted a certain form of defensibility to our clients. However recently, I’ve been involved in a few engagements where what constitutes IP has had a rather more murky definition which has led to a more evolved position on IP in my thinking:

1. One of our clients is doing a series A fundraise at the moment. They have a significant breakthrough in combustion technology and their business model is to develop and integrate it with large industrial collaborators, with the view to licensing to generate long-term revenue streams. One of the investors who is currently investigating them invests purely on the strength of the IP position. Our client has 7 patents across multiple patent families. Nevertheless, and despite NDAs, our client has not yet got to the stage of sharing their detailed designs because that is where their real technological differentiation lies. So where is their IP? In the patents, or in the design which is only briefly alluded to in the patents?
2. Another client has licensed their IP to a company that has built large industrial plants using their technology. The core patent has expired but the license persists – both parties know, and will freely admit, that while much of the core technology is in the public domain, it is the secret knowhow and process knowledge that allows the licensee to profitably run the plant. How do you quantify that know-how? How do you protect it? How do you price it? Either way, their defensibility lies in that secret know-how. That plant cannot be run profitably without their process knowledge and know-how.
3. A third client has a space heritage but like in the previous case, the core patent for their technology has expired. As such they have developed some process, and application patents. Fundamentally though, they do not have IP that protects the application, only their unique efficacy. What they do have is an emerging market with a clear need, a defined way that the market will adopt the technology, and a better product / design than their competitors. As such, their strategy is very much focused on selling this to as many customers as quickly as possible, and to find the right manufacturing model that will protect their design. Their defensibility lies in their commercialisation strategy, and their speed to market which is something that smaller, more agile companies are well suited to. They are very much a “deep-tech” company but are they an IP company – I don’t know and quite frankly don’t care as long as we have a product and a strategy that will fundamentally build market defensibility and long-term growth.

These are just a few examples of the extent of the diversity of challenges that have to be overcome “IP companies”, and while this is very generic, and fails to take into account several other hugely important contextual factors, it does provide a starter for six.

If you’ve got secret know-how and no one can reverse engineer your product / process when they get their hands on the product, then manufacture. This has two benefits as 1) it minimises IP leakage and 2) Allows you to price at the level you want as your customer has no way of knowing how it is you manufactured the technology and so is more willing to pay on the value of the problem being solved as opposed to imposing a cost plus model on you. Conversely, you shouldn’t dream of licensing in this scenario as you leave yourself open to your secret knowhow getting into the public domain and run the risk of your licence being compromised. Alternatively, if you’ve got a strong patent position, then license away as it’s pretty easy to see if someone is infringing on the patent.

Chester Karass said, in business as in life, you don’t get what you deserve, you get what you negotiate. The IP corollary is that your IP is only as strong as your wherewithal to protect it. Which for early stage companies with limited financial and even fewer legal resources is not very high. That’s why I’m a firm believer in the best piece of IP advice anyone ever gave me – keep secret what you can keep secret (and manufacture if no one can reverse engineer it) and patent what you can’t!