Canada: IP Strategy: What Management Can Learn From The Disruptors

IP strategies that appreciate licensing, connectivity patents and the behaviour of start-ups can give companies the edge in disrupted markets.

When Mark Zuckerberg made "move fast and break things" his company's motto, he coined a mantra for those seeking to tear up old markets.

The Facebook founder's provocative statement summed up much about the attitude and drive behind disruptive companies.

On the one hand, the speed: create, refine, pivot, repeat... On the other, rule-breaking, professional transgression coded into the culture.

This behaviour has been at the core of the start-up scene, helping hundreds of companies force their way into sectors that for decades had looked and acted largely the same - before turning them upside down. It even helped a handful of them change the world.

We are currently in a period of extraordinary innovation that promises similar chaos. AI, connectivity, blockchain, autonomous vehicles, drones, 3D printing, augmented and virtual reality... An unprecedented amount of new technologies is changing the way we work, the products we buy, and how we buy them.

For businesses, it's also changing who their competitors are.

But there is a way that companies in mature markets can take part in this frantic innovation and defend themselves against these non-conformist competitors - intellectual property (IP).

As Gowling WLG's Co-head of Intellectual Property, Gordon Harris, says: "IP is very important across all the major likely growth technologies of the next few years.

"Whether it's general tech, in terms of AI or robotics, or the increasing correlation between tech and healthcare, wearables, diagnostic equipment, energy... IP is involved in all of these things on all levels.

"It's not going to go away and it's getting much more significant."

But 'speed' is not something that IP is known for, certainly not when applied to litigation or changes in the law. And 'rule-breaking', while definitely an IP strategy, is more the result of, not a mantra for, a rules-based system.

When a business is faced with an onslaught of disruptive technology and the competitors who use it, how can it adapt its IP strategy?

This is the theme of Gowling WLG's Swipe Right: Smart choices in disruptive times report.

Surveying hundreds of C-suite executives at large multinational companies, heads of IP, and general counsel, the report examines where innovations like AI, connectivity (IoT) and blockchain meet IP strategy.

What it discovers is 92% of all respondents think IP is either very important or important to their business.

Yet it also finds IP strategies that could leave some sectors unconcerned about start-ups with a 'bet the company' patent and aspects of disruptive culture that can benefit progressive legal teams.

1. Explore licensing

IP will be an integral element in consumer-product relationships of the future.

Licensing is increasingly becoming essential for companies wanting to use new technologies in their products and services.

While all companies have specific IP needs, so may not want to engage with licensing, it is regardless set to permeate into new sectors as industry-changing innovations appear.

"There is a move towards more of a licensing model rather than selling a product. This is pervasive: whereas people used to buy CDs, now they are sold the right to stream music.

"And in terms of IP, logistics, customer recruitment and retention, revenue, etc., that's a very different business model," explains Matt Hervey, Director at Gowling WLG, who works with leading-edge tech companies.

2. Give more weight to branding

Many of the disruptors are backed by software. From an IP perspective, that is a problem because AI and machine learning is still seen by the major patent offices as a 'computer-implemented invention', making it harder to protect.

Take autonomous vehicles, for example. Cars already contain millions of lines of code to help them operate, so whereas one might own a car, "the ability to use one can be controlled via a licensing relationship" says Matt.

"The theory is that, if cars drive themselves, it's unlikely you'll ever own one because if it will come to your door the moment you want it... you might as well get 'mobility as a service'. So the IP is probably going to focus on brand values," Matt says.

Consumers will pick 'mobility providers' like they currently pick a smartphone package. The tech being largely a bundle of licensed patents on wheels, it will be the brand and its registered trademark that holds the value.

3. Understand connectivity patents

The predicted ubiquity of the Internet of Things (IoT) will be built on connectivity patents.

The interoperability and sensitivity around data privacy and protection, mean objects that are connected to each other and the internet will be subject to standards.

This will inevitably include standard-essential patents familiar to the smartphone and, in future, autonomous vehicle markets. Want to take part in IoT? Then you need to understand how these patents are licensed.

Says Matt: "And, with regulators taking a balanced position between patent holders and implementers, it is likely to fall to the market to develop the business model and pricing when there may be billions of connected things."

What's more, "companies producing connected products (which may increasingly be all companies) will need licences. Enforcement of connectivity patents for mobile phones has been battling in the courts for 20 years," he adds.

4. Know the enemy (they could be your friend)

What can an established business do against a new competitor that does not play by the rules?

It helps to understand what you are up against, says Bruce Sales, a Partner at Lerner David in the US, who has worked in IP since the 1980s.

"The last 20 years have certainly shown that no matter what size a company may be, you need to be vigilant about how you are going to adapt your companies position in the market to disruptive business practices," Bruce warns.

It is 'inevitable' that start-ups act in a more agile way, but they sometimes use IP as a shield against older leverage, like market share.

"Smaller, start-up disruptive companies may have some proof of concept... but they're not going to have significant market share in a short period of time."

To defend themselves against existing players, some construct a sophisticated IP programme.

Adds Bruce, "IP might give a larger competitor, or a broader marketplace pause to consider the start-up's technology... to license it, or to buy you."

Download Swipe Right - Smart choices in disruptive times today to learn more about the big disruptors and why you can no longer rely on traditional methods to protect and enforce your IP.

Read the original article on

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions