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Undertaking an audit of your intellectual property

What is an intellectual property audit (IP audit)?

Most businesses have intellectual property of some type, but they do not always recognise it. An IP audit is a review of the intellectual property 'state of affairs' in your business.

Failing to recognise intellectual property you have means it may not be working as hard as it could to benefit your business.

It also may mean that you are at risk of losing the competitive advantage that your intellectual property may give you, should you lose or fail to protect your intellectual property.

How do I perform an IP audit of my business?

Below are a series of questions and activities that will help you undertake an IP audit of your business.

You might need to refer to the reports that you have generated to help answer some of the questions. You may also need the help of a professional adviser to answer some questions.

Does my business have any processes in place to identify intellectual property?

  • Do you have a process in your business by which your employees recognise intellectual property and identify it to you?
  • Do you have a register or database of intellectual property (IP register) that has been identified, with details about how it is protected?
  • Do you periodically review your IP register to ensure that it is up to date?
  • Do you periodically explore with your employees new ideas and processes that they have, or refinements on existing ideas and processes?

How do I identify intellectual property?

Consider the operations and activities of your business, and progressively list all the intellectual property that you have under the following headings, allocating a name to each, and a description.

Include all the intellectual property that you believe that you own, intellectual property that you are developing, as well as intellectual property that you use, even if you are unsure of its ownership. Your list should include:

Is my intellectual property being used effectively?

Ask yourself the following questions:

  • Is my intellectual property being used to its best advantage?
  • Do staff who need to know about intellectual property actually know it, or is its use 'hit or miss'?
  • What steps can I take to ensure my intellectual property is being used to its best advantage?

Do I own the intellectual property I have identified?

Consider each item that you have identified.

  • Was it created by your employees in the course of their employment? If so, have you ensured that you have captured ownership of the intellectual property in the employment agreement, and protected it with confidentiality and other clauses in the employment agreement?
  • Was it created by independent contractors or consultants in the course of their engagement? If so, have you ensured that you have captured ownership of the intellectual property in the engagement agreement, and protected it with confidentiality and other clauses in the engagement agreement?
  • Is it jointly owned? If so, do you need permission to use it in the way that you do, and do you already have that permission?
  • Is it someone else's intellectual property? If so, have you been granted a licence to use it in the way that you do?

Registered intellectual property

Include the registration details of any intellectual property that you have registered (trademarks, business names, company names, domain names, patents, registered designs, and plant breeder's rights).

Record and diarise when renewal or maintenance fees are due.

Unregistered intellectual property

For each item of intellectual property that is unregistered, consider whether it would be prudent to register it, and whether it is eligible for registration.

Overseas protection

Consider whether any intellectual property should be protected in other countries, and if so, the steps you should take to proceed to do so.

Other protection strategies

Consider all the other protection strategies mentioned in this tool, both contractual as well as practical.

Identify which strategies should be employed to protect each item of intellectual property.

Assess whether those strategies are being employed well, and assess whether steps should be taken to improve protection.

Are there opportunities to share my intellectual property?

If your intellectual property benefits you in your business, it might well benefit other people in their business, but at the same time you do not want to better equip your competitors.

Consider whether there are businesses that do not compete with you that may be interested in licensing your intellectual property.

A business in an entirely different industry might benefit from your intellectual property.

A business in the same industry sector, but located elsewhere in Australia (so that it may not really be a competitor), might benefit from your intellectual property.

A business in another country might benefit from your intellectual property.

Are other people using my intellectual property without my permission?

If so, consider whether there are steps you can take to deter them, to stop them, or to receive compensation from them.

An IP register is a living document

Your IP audit and IP register should not be something that you do once and then put away.

The most intellectual property-savvy businesses regularly undertake IP audits and reviews. Treat your IP register as a living document, periodically updating and adding to it, to ensure that all your intellectual property advantages are recognised.