When it comes to how to incorporate intellectual property (IP) into your business, the best thing to know is that it is not a “one size fits all” solution.

“IP is complex -  there is no one right strategy that works across all companies,” said Barrie McKenna, author of the latest Innovation Economy Council (IEC) June 2021 report Beyond Patents: Canada’s Intellectual Property Puzzle.

In a panel discussion led by the IEC on June 3, Rhonda O’Keefe, VP Intellectual Property and Contracts with NGen, said IP comes in many forms including patents, nondisclosure agreements, copyrights, trade secrets, confidentiality agreements and more.

“We want to know how to make Canada a destination for innovation instead of a source. We want the growth and investment in innovation to reside here in Canada. IP and patents are part of that conversation,” said O’Keefe.

In the software industry for example, filing a patent is counterproductive because technology is changing so rapidly, says David Asgeirsson, manager of partnerships and IP with Xanadu. “With quantum computing today, it’s about rapid experimentation. Most software is open source.” 

On the other hand, he said pursuing patenting makes sense for chip processing and software.

“Different IP strategies can apply to different areas of your business,” said Asgeirsson.

Xanadu is constantly trying to make sure they are competitive and pursue an approach that positions them well for the long-term, he adds. “We have patents but we are also making ourselves attractive and ready to work with early adopters.”

Considering this, one common theme from all panelists was to get an IP lawyer on contract early so they can get a strong understanding of the business and help it evolve and grow.

Domenic Di Mondo, VP of Technology and Business Development with Green Mantra, works for an advanced recycling company that converts recycled plastics into synthetic waxes, polymers and other industrial chemicals. When it comes to trade secrets or patents, he says to make sure to loop in an IP firm and an IP lawyer early even as a startup so you can create a road map for 5 to 10 to 20 years down the road.

“Make that decision along with them. Trade secrets and patent protection provide different protection,” added Di Mondo. Before you get to filing a patent, Di Mondo says your executive leadership team should be asking themselves why? “Are you protecting others from copying or from others boxing you out of the market? Once you file that patent, how will you take advantage of being a first mover with that product?”

Like Asgeirsson, Mike Wessineger, CEO and cofounder of PointClickCare says their business doesn’t spend much time on software patents. “It’s a slow and expensive process to maintain and develop and maintain a strategy for software. The probability of success is not guaranteed. We are more focused on trade secrets and confidentiality and copyrights,” said Wessineger.

Instead PointClickCare focuses on research and development to stay ahead of their competitors. 

In the agriculture industry, it’s the complete opposite. Darren Anderson is the CEO with Vive Crop Protection developing sustainable crop inputs. He said their business has more than 70 patents with a broad portfolio of IP. In the agriculture sector, patents are filed because the timeframe is much longer and drawn out.

“It’s a long time to get a product to market, three to 13 years. And once you have a product to market, it takes two to three years to see a return on a marketing investment. It’s a slow ramp, it’s very important to protect your market share once you develop it,” said Anderson.

O’Keefe realizes not all companies can go it alone. She says Canadian companies need support to be able to collaborate with other businesses as it helps them move faster and reduce risk and increase revenue for commercialization.

Stay tuned for part two of this blog, when we discuss IP and how it relates to global mergers and acquisitions.