A Christmas tale - about IP

A Christmas tale to warm your hearts…

It was late on in the day, Christmas Eve - it wasn’t snowy and felt right not like Christmas at all, as the un-investable founder pitched her thousandth pitch to what would turn out to be a fairy-investor – without wings, but with some sparkly stuff. 

“What’s your IP strategy?” posed the fairy-investor to the un-investable founder standing before her, diving right in to the nitty gritty.

“Well, we’ve got a patent haven’t we!” beamed the enthusiastic but un-investable founder – hiding the fact that she was dying inside – having to do this AGAIN.

“And does that protect what you are aiming to do, commercially?”

The un-investable founder scrambled for an answer “err yeah, it does – or it did when we started out”.

“If I’m investing all this cash I need to know that you have a defensible position and a competitive advantage” explained the fairy-investor. “What is your strategy going forwards? And why are you still paying for a patent that doesn’t seem to support your position?”.

“File more patents” threw out the un-investable founder.

“OK…and what will they be looking to protect? When do you think you’ll have the data and when will you file?”

“We will likely try and protect our new method once we have the data”.

The fairy-investor probed further “What about trade secret protection – the method you are developing – according to your business plan the method will be kept in-house, so have you considered maintaining it as a trade secret rather than protecting it with a patent, which becomes public?”

Ah – a trick question thought the un-investable founder. “Of course not – patents are the best way to protect everything aren’t they”.

“hmm” hmm’ed the fairy-investor. “How do you plan to monetise your IP?”

“Likely grant an exclusive licence to a third party and take royalties” the un-investable founder said, confidently back on track.

“Will that be for all fields of use, or do you think you can split it into different fields of use and licence to different third parties?”

Bewildered, the un-investable founder replied “I didn’t know you could do that”.

Kindly moving on to something else - “Let’s move onto something else, what have you done in the way of freedom to operate analysis?” said the fairy-investor.

“Oh well you know, our method is totally new so we can definitely get a patent to it”

Red flags started to replace the sugar plums dancing before the fairy-investor’s eyes.

“You know that you can have something that is patentable, but that you don’t have freedom to do, without infringing someone else’s patent, right?” said the fairy-investor.

“Oh – well that doesn’t make sense does it?” said the un-investable founder, now bewildered and beffudled.

“Well it does – I take it then that you haven’t done any FTO analysis?” questioned the fairy-investor, also wondering why the author is making up words such as beffudled – which actually surely must be a word - so get lost MS Word.

“No”

“So you have no plans in place – whether you would look to take a licence, take a decision to infringe anyway etc?”

“Err”.

Giving the un-investable founder the benefit of the doubt, the fairy-investor moved on to ownership “It says in your business plan that the idea for the company started while you were a postdoc – does the university have any rights to your intellectual property?”

“Well - no – I did the work and I came up with the idea so it’s mine”

The sugar plums had now been suffocated by the red flags– “Did you talk to the tech transfer office? Do you have anything in writing to say that they have no claim to your IP?”

“Why would I tell them MY idea?”

The fairy-investor let out a slow sigh.

Because it was Christmas, and because the fairy-investor was a kindly sort, she said “Let me tell you of a secret tome. It is called the Potter Clarkson IP Strategy White Paper, and legend has it that it was written by three wise and powerful witches, Sara Holland, Pippa Hothersall and Fiona Law. I don’t think they come from Eastwick, but I know one lives near Eastwood. I happen to have a pdf copy here that I can email to you. If you read this, and take all the advice it gives you will, finally, become an investable founder. It is truly well greater than a Sports Almanac”

“Take it now, quickly”.

The fairy-investor opened the gull wing on the nearby DeLorean, shoved the un-investable founder inside, set the dial to 6 months previous and closed the door.

“Hit 88 miles per hour and I will see you in 6 months when you shall be glorious and investable and I will give you all of my money”

And they all lived happily ever after.

The end.