How to identify intellectual property in your business (A step-by-step guide for SMEs)

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. 

Key Takeaway: Knowing what IP your business has isn’t just a legal exercise - it’s a commercial one. Running a simple IP audit clarifies what IP you have, reveals your competitive edge, and shows where your business is exposed or missing valuable opportunities.

I’m time poor, why does this matter?

If you run a creative and innovative business, your intangible assets are often your most valuable assets.  These assets could include ideas, technology, designs, brands, software code, and research results and they are what attracts customers, investors and purchasers of your business! The good news is that intangible assets can be protected but knowing what intellectual property (IP) you have and where your business could be at risk or missing valuable opportunities to capitalise on your IP can be tricky. 

If someone asked you today “What IP does your business have?” could you confidently answer them? If the answer is “No” or “I’m not sure”, then one of the highest value exercises you can do for your business today is to run a simple checklist (known as an “IP audit”) to identify the IP in your business. 

You can learn more about the “Why?” of an IP audit and benefits for your business on IP First Response website Conduct IP audits to spot gaps, reduce risks and plan next-steps. Below we give you a step-by-step “How to” guide that depending on the size of your business, you could tackle in a day.

Where to start?

Grab your morning coffee and follow this Step-by-Step Guide to identify, verify, and prioritise your IP. At the end of the day, you should have an action list for your business IP.

Step 1: List your IP assets
(1-2 hours)

Start by identifying your key business assets. Think broadly about your business and be sure to ask your designers/engineers, product teams and marketing for input.  Common examples include:

• Business name, logos, domain names, social media handles 

• Products, processes, prototypes, inventions 

• Website content and software code

• Marketing materials, designs, packaging

• Training materials, template documents

• Customer lists, datasets, confidential information and trade secrets (think confidential information that gives your business a competitive edge such as Coca Cola’s secret recipe)

Create a simple spreadsheet and list each item as you go.  Try and group like assets together. 

Step 2: Identify what’s protected
(1-2 hours)

For each asset on your list, note what protections (if any) are already in place.  For each asset ask:

• Is this registered? I.e. have I registered my trade mark or patented my invention?

• Is it covered by copyright automatically?

• Do I have any agreements in place to protect the asset (for example, do I have non-disclosure agreements (NDAs) with suppliers to stop unauthorised use/sharing of my customer lists)?

You can learn more about the different types of IP(Opens in a new tab/window) you can register on the IP Australia website.

Step 3: Check ownership
(1 hour)

This step is where surprises happen and many SMEs uncover risks. For each asset on your list ask:

• Who actually created it? An employee, contractor or a third-party business?

• Do I have written agreements confirming the business owns it?

• If IP has been developed jointly, is there a formal agreement as to who owns it? If IP is jointly owned, do you need permission to use it and do you have that permission?

If the IP was created by an employee in the course of their employment, have you captured ownership of the IP in the employment agreement and protected it with confidentiality clauses? If you hired a freelance designer or contractor to create your business logo or write your website, the freelance designer or contractor will own the IP unless it was clearly assigned to you in a written contract.  What does your contact of engagement say?

If the IP is owned by another party, do you have permission (i.e. a licence) to use the IP in the way you are using it?

You can learn more about who owns intellectual property(Opens in a new tab/window) on the IP Australia website.  You can also visit IP First Response Blogs to learn more about Joint custody: The risks of sharing IP.

Ideally, you want to ensure all IP flows back to the business.  Make a note of any ownership gaps.

Step 4: Prioritise your IP and look for any red flags or opportunities
(1-2 hours)

Not all IP is of equal value to your business. For example, your inhouse staff training manual will hold a different value to your business than your distinctive brand logo that customers, suppliers and investors etc associate with your product and business.  While it is important to list all your IP to get sense of your business assets, be sure to focus on your IP assets that:

• Tie directly to your business revenue or provide competitive advantage;

• Investors or collaboration partners will scrutinise;

• Are at risk (e.g. brand logos that have not been registered as a trade mark or products/technology that is easily replicated by competitors).

Now it’s time to review your list and flag potential issues. Adopting a traffic-light system is well understood by team members and quickly identifies issues.  Update your list as follows:

✅ Green: IP is protected and ownership documented

🟨 Amber: needs attention

🟥 Red: high risk or unclear ownership 

Examples of green entries are brand logos that have been registered as trademarks, inventions for which patent protection has been sought or obtained and inhouse training manuals where copyright is owned by the business. 
Amber entries could be used for missing freelance designer contracts or where IP ownership is unclear. You might also use amber to highlight possible opportunities to share your IP i.e. could you licence your IP to another business that does not compete with you but could benefit from your IP.  
Use red entries for brand logos that are being used without being registered as a trade mark, third-party images or content etc being used on your website without permission/licences, business sensitive information that isn’t protected (e.g. there are no NDAs in place).

You might like to visit Explore opportunities by licensing your IP on the IP First Response Australia website to learn more.

Step 5: Create a simple action plan
(1 hour)

Remember, Rome wasn’t built in a day! Create a short action list focusing on your red entries - prioritise risks that could impact your revenue or brand reputation.  Your action list might include the following:

• Register business name and brand logo as a trademark 
  Visit IP Australia Trade Marks(Opens in a new tab/window) to understand how a trade mark can support your business' success, and how to apply for one. You may also wish to engage a trade mark attorney to handle the technical side of registering trade marks.

• Update contracts to include IP ownership clauses
  Your agreements should clearly state that IP ownership belongs to the business. You may also consider engaging an IP professional to assist you.  IP commercialisation lawyers can help you clearly identify and assign IP ownership in your commercial agreements.

• Introduce NDAs
  Protect your business sensitive information by having staff and contactors sign NDAs and make it a policy that sensitive information is only shared on a need-to-know basis.  Again, IP commercialisation lawyers can help with this.

• Replace any unlicensed images being used on your website
  This is a quick task and avoids the risk of your business being accused of infringing another party’s IP.  If you are facing an IP infringement challenge or think another person is using your IP without permission this is where IP First Response’s navigator tool can help you understand your options.