Why every creative business needs an IP strategy from day one

This blog was authored by Senior Associate Louise Brunero & Director Jeff Bergmann, IP Commercialisation Lawyers at law firm Solubility(Opens in a new tab/window). The views expressed do not necessarily reflect the views or position of IP Australia, and should not be taken as constituting advice. If you require guidance specific to your situation, you should consider seeking professional advice.

What is an IP strategy?

At its most simple, an IP strategy is your company’s plan of action to manage and protect its intangible assets.

Intangible assets in your business could include ideas, technology, designs, brands, software code, and research results. Intangible assets are often the backbone of value to your creative and innovative business. These type of assets are also what attract investors and purchasers of your business!

Whilst many businesses successfully manage their physical assets (such as the premises, office equipment, machinery, stock and vehicles), the intangible assets are often overlooked.

A strong IP strategy ensures:

Early identification and protection of any IP in your business;
Extracting value from IP your business has identified; and
Clear ownership of IP between co-founders, employees, and contractors from the outset—ideally you want to ensure valuable IP is owned by your company, and that IP does not leave the company when a co-founder or employee leaves.

Do we need an IP strategy now, or can we wait to see if our idea succeeds?

We are often asked this by creative and innovative businesses. The answer is simple - you need an IP strategy early. Waiting can create serious risks for your business growth and success:

if you use or disclose an invention, design or brand too soon (called early disclosure), you may lose the chance to protect it;
without clear IP ownership, investors may hesitate to invest in you and your business; and
disagreements between co-founders, collaborators or contractors can arise and derail progress.

Also, an IP strategy is not something you set once and forget. It should be revisited regularly, especially when major changes occur (such as when new projects begin, or new products or brands are in development), to ensure it grows with your business.

Why is an IP strategy critical for creative businesses?

Having a great idea and a strong team is important—but it’s not enough on its own for business success. Creative and innovative businesses who are seeking investors need to show that the business has defensible value – a strong advantage competitors cannot easily copy.

A key question to ask yourself is:

“Why would someone invest in or buy my business, instead of just copying me or going to a competitor?”

The answer often lies in your business having foundational IP that is both:

broad – capturing a significant portion of the market; and
strong – capable of stopping competitors from operating in your space, so that it’s preferable for the investor or purchaser to work with you rather than compete with you.

Having a clear and proactive IP strategy:

protects your foundational/core IP;
shows investors/purchasers that your IP is secure and investible;
ensures employees, contractors and collaborators understand how IP is created, owned, and managed; and
keeps developments confidential until they are protected.

Setting your IP strategy

Setting an IP strategy doesn’t need to be complicated, but it does need to be deliberate. Here are seven key steps:

Recognise your IP: Identify what counts as IP in your business, from patents and trademarks to copyright and trade secrets. You can learn more about the different types of IP(Opens in a new tab/window) you can register on the IP Australia website.
Educate your staff to help identify IP early: Make sure your team knows what IP is, why it matters, and how to report it to the company. Processes should be simple and efficient.
Ensure IP flows back to the business: employees, contractors or collaborators may contribute to your product—agreements should clearly state that IP ownership belongs to the business.
Understand confidentiality clauses and IP: Non-disclosure agreements and confidentiality obligations on employees, contractors and collaborators are crucial to avoid early disclosure that could undermine protection of your valuable IP.
Engage an expert: Knowing when to get the right advice is critical to support your business growth and goals.
a) An IP commercialisation lawyer (that’s us) helps you structure your business and build your IP strategy through IP ownership and commercial agreements. IP commercialisation lawyers focus on preventing disputes and maximising the value of your IP—think of us as “pre-nup lawyers” laying the groundwork for a long-term relationship, rather than the “divorce lawyers” you’d consult when things go awry.
b) A patent/trade mark attorney handles the technical side of registering patents, trademarks, and designs.
Set and forget? Not quite! Your IP strategy should evolve as your business scales, pivots, develops new products or enters new markets. Review it regularly to ensure it matches your commercial goals.
Finally, know what steps you can take to enforce your IP or what to do if you are accused of infringing another party’s IP. This is where IP First Response’s navigator tool can help you understand your options to enforce your IP or defend an IP infringement challenge.

Remember, a well-made IP strategy reduces the risk of accidental disclosures of valuable IP and ensures you are informed and prepared in the case of IP disputes.

Final thoughts

Ultimately, your IP strategy is not just about protection - it’s about realising your business’ potential by creating and protecting assets that strengthen its value and long-term prospects.