Finding the IP You Already Have

The legal framework

A company's intellectual property is not limited to what appears in a register. Some rights arise automatically, others stay in the hands of people who created them, and some valuable assets are protected only as long as nobody discloses them.

Rights that arise without registration

Copyright arises on creation of an original work: software, documentation, technical drawings, photographs, texts, marketing material and designs. No formality is needed. Directive 96/9/EC gives the maker of a database that required a substantial investment a separate right (the sui generis right) for 15 years, renewed if the content is substantially changed. An unregistered Community design protects the appearance of a product for three years from the day it was first made available to the public in the EU (Regulation (EC) 6/2002, Art. 11). Trade secrets, such as formulas, know-how and customer data, are protected under Directive (EU) 2016/943 if they are secret, valuable because secret, and subject to reasonable steps to keep them so.

Rights that need a filing to exist

Inventions are protectable by patent only if they are filed before they are made public, since the EPC has no general grace period. A technical solution developed in a project and described in a presentation may therefore be lost without anyone noticing. Names and logos are protected as trademarks through registration, and the protection of unregistered signs differs from one member state to the next.

Who owns it

Ownership is the point where many companies discover problems. Copyright in a program created by an employee in the execution of their duties is exercised by the employer (Directive 2009/24/EC, Art. 2(3)). For other works, and for works made by freelancers, agencies and joint development partners, rights stay with the creator unless they are assigned in writing. Beyond that, national law decides. Many countries want copyright transfers in writing and read them narrowly, and rules on employee inventions differ widely: some member states have a specific statute, while others leave it to the employment contract and case law. Universities and research partners often have their own rules.

In practice

An IP audit is a structured review with five steps.

1. Interview. We talk with the people who develop products, content and processes, because they know what has been created and by whom.
2. Inventory. Every asset is recorded: registered rights, unregistered rights, inventions not yet filed, trade secrets, domain names, software and the third-party materials used with them.
3. Ownership. For each asset we trace who created it and on what basis, and whether the company holds the rights by law, by assignment or by licence.
4. Assessment. Each asset is classified by value and risk, and we advise whether to file, keep secret, license, assign or leave it. For possible inventions, our patent analysis function tests whether anything comparable exists in the state of the art.
5. Record. Results enter the register in our portfolio system and the missing contracts are drafted, for example with our Document Studio.

A European robotics company agrees to an audit before a funding round. The interviews reveal an unpatented gripper mechanism that the engineers presented at a student workshop eight months earlier. Novelty is likely lost for that version, but a later improvement is still unpublished and can be filed. The audit also finds that the control software was written partly by a freelancer without an assignment, that the product name has not been registered as a trademark, and that a customer dataset used for training is protected only as a trade secret. Each finding has a remedy: a patent filing for the improvement, an assignment from the freelancer, a trademark filing and a confidentiality review.

The same exercise often matters for tax. Several member states have an IP-based tax incentive for income from qualifying IP rights, such as patents and copyright-protected software. The audit shows whether there is a basis to claim it and which records are needed. Our innovation income deduction service builds on such a review.

Frequently asked questions

Do I own what my employees create?

For software, the employer generally exercises the economic rights if the work was made in the execution of the employee's duties. For other works and inventions it depends on the contract and the circumstances, so the employment contract should say so.

Is an audit only for large companies?

No. A smaller company with a handful of assets can be reviewed in a short exercise, and it is often most useful before a funding round, sale or product launch.

What happens if I find an unfiled invention that has already been presented?

Novelty may be lost for what was disclosed, but improvements and unpublished aspects may still be protectable. The earlier it is checked, the more can be saved.

Does an audit lead to more filings?

Not necessarily. It often leads to fewer, better-targeted filings, to contracts that fix ownership, and to a decision to keep some things secret.

How this connects

An audit is the first step of a patent strategy, because it identifies what may be worth protecting. It also supplies the evidence for the innovation income deduction. The technology that records the results is described in IP portfolio, renewals and deadlines.