Borenius’ Tech Blog: The Four Relationships of a Successful IP and Data Strategy

An IP strategy is usually understood through the protection of company assets: protect the R&D investment, prevent competitors from copying, keep the technology within the company. Although protection is essential, perhaps a fuller picture of a company’s IP strategy can be illustrated through four relationships: with employees who generate assets, with suppliers and distributors who gain access to them, with competitors who try to work around them, and with customers whose choices determine their commercial value.

As access to and use of data become increasingly important, a company’s IP strategy should also account for other valuable data assets. It may therefore be more accurate to view it as an IP and data strategy. Recent regulations, such as the EU Data Act, may give companies access to new data that creates business opportunities and strengthens their broader IP strategy.

It all starts with employees. Ideas originate with people, and the goal is both to encourage employees to generate assets and to ensure that what gets created stays with the company. A culture that values and rewards innovation keeps knowledge within the company and creates innovations in the first place. Clear contractual arrangements around IP ownership and confidentiality are part of that culture, as are genuine incentives for people to bring ideas forward rather than sit on them.

The relationship with competitors raises two distinct questions. First, a company must make sure that its products do not infringe third-party rights by conducting freedom-to-operate (FTO) analyses in the relevant market. Second, it needs to ensure competitors cannot freely benefit from what it has developed and the efforts it has made. This would primarily involve keeping certain information and proprietary data secret and seeking registered protection for the parts that cannot be kept confidential. Sometimes, uncertainty in the eyes of competitors regarding the strength and form of the protection could prove almost as useful as registered protection itself.

Sharing IP and data with, and acquiring them from, third-party suppliers is often unavoidable in an increasingly complex technological environment since it is rarely realistic for a company to develop all technology (and therefore IP) in-house. As a result, the IP strategy is always linked to IP risk management and management of dependencies in supply chains. Furthermore, when sharing proprietary information with third parties, companies should always agree on a clear use case and how the parties can use each other’s proprietary information for their own purposes. Should the parties be allowed to use the common creations outside the arrangement in the future? If yes, can the parties use the creations to compete with each other, and should the field of use be restricted to some extent?

With customers, the IP strategy can sometimes be a complex consideration to tackle since it is closely linked to the company’s overall business strategy and brand value. The primary question here is what offering customers are ready to pay for. A business that builds on open-source products can be very different from a SaaS offering. A company’s IP strategy cannot therefore be viewed separately from the company’s main business strategy in relation to customers.

The practical starting point is to map the relationships the business depends on and ask what IP and data questions each one raises. Addressing gaps in the company’s IP and data strategy at an early stage often benefits the entire business in the long run. Having a clear goal for each of the four relationships and determining which aspects to focus on specifically are key to a successful IP and data strategy.

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