Let’s talk first about businesses that make a product. Every product has a development cycle with three stages.

The first stage is research and development (R&D). This starts with a concept, evolves through theoretical engineering and ends with production of sufficient product for testing.

The second stage is testing. If the product is medical, cosmetic or edible, a regulatory agency will probably require testing before marketing approval will be given. Even if there is no requirement for testing, pre-market testing to make sure the product functions properly and has no unexpected defects is routine. By the time you are making the transition from R&D to testing, you should have a good idea of both how the product functions and how it looks.

The third stage is product launch.

Your IP strategy should consider all three stages of product development. The following diagram shows how your product development should align with your IP strategy.

IP comes in different varieties which serve different business needs. The three types of “hard” IP are utility patents, designs and copyright. “Hard” IP means protection that is intrinsically linked to the product.

Of the three types of hard IP, utility patents take the longest to obtain. One of the requirements is that the invention claimed in the patent be new. This means that the time to file an initial patent application is early, usually during the R&D stage. Even with this early filing, you may not have a granted patent at the time of product launch. The function of a utility patent is to protect what the product does. If properly written, a utility patent can prevent others from using important product features, even in a different product.

The second type of hard IP is designs. Designs protect only the visual appearance of a product and not its function. Because the external appearance of a product is often finalized later in the product development cycle, it is often appropriate to file a design application later than a utility patent application. The examination procedure for a design application is also shorter than for a utility patent. As a result even though the design application is filed later, it may be granted while the utility patent is still under examination.

The third type of hard IP is copyright. Copyright can be appropriate for products which include something written, such as computer software code. The procedure for registration is relatively fast and inexpensive. If relevant, it can be conducted early in the product development cycle. The recent lawsuit between Oracle® and Google® over use of Javascript® has put copyright of computer code in the spotlight. Those of you using the Chrome® browser may have noticed that it no longer supports Javascript®.

The Diagram shows branding as a separate box within the IP box becausebranding relies on “soft” IP. “Soft” IP means protection that is not intrinsically linked to the product. For example, the same product could be named zingaling or glickstick. Neither name is inherently linked to the product. However, marketing of the product under a unique name creates a link between the product and the name in the mind of consumers.

Service businesses often have a shorter development cycle and tend to rely more heavily on soft IP. This is especially true for service providers that have no unique technology such as restaurants, retail stores and beauticians.