Intellectual property (IP) is fundamental to innovation, especially in the competitive, rapidly changing field of battery technology. For startups, protecting their own IP is crucial, but it’s just as important to ensure their technology doesn’t infringe on existing patents. The battery technology sector heavily relies on IP, making it vital to address these issues. Keep reading for practical tips to help you navigate the complexities of IP protection, beginning with why considering your freedom to operate is so important.

Think about your freedom to operate

Clearly, protecting your own IP is important, but checking whether your pipeline risks infringing anyone else’s IP is a critical early task for a startup—and one that can be difficult for battery techs. Freedom to operate, or FTO, and investors will expect you to have considered it. At a minimum, set up patent publication watches to spot new applications that could pose a problem if granted. There are plenty of commercial providers of this service. Speak to an attorney if you don’t know where to start.

There are many patents protecting battery tech at all levels, so there can be a lot to review (e.g., patents protecting active materials per se, electrode formulations, cell architecture, battery management systems, and so on). Depending on your business model, you won’t need to review all of them (e.g., patents for battery management systems are unlikely to be relevant if you’re planning on supplying an active material to cell manufacturers). But bear in mind that your customers may want to see warranties that using your tech will not infringe third-party patents. As such, a materials supplier might still need to consider the risks posed by cell-level patents, which could protect the downstream use of their material. It’s a good idea to obtain an FTO opinion from an attorney before launching a new product.

Data is key to securing patents for battery technology

Without going into too much legal detail, you will stand a greater chance of securing a patent if you can prove that your invention provides an improvement over the state of the art, which typically requires experimental data. However, the lack of standardization in battery tech can make it difficult to directly compare results from your lab with the state of the art, so providing that proof can be challenging. 

To address this problem, aim to provide data that is representative of the state of the art and allows a fair comparison with your invention, showing that the invention provides the sought-for improvement. If you provide data on your invention, even if showing excellent performance in your lab, that might not be enough to secure a patent. 

Budget appropriately and long-term for IP

For each invention you want to patent, there will be an initial cost for filing the first patent application. Still, there will also be additional fees for follow-on applications, which can’t be avoided if you want to secure protection in the key global markets. So, for each invention, make sure you have cash in the budget for at least the next 3-4 years. You don’t want to be in a situation where you have spent all your IP budget on trying to protect several inventions in year one and then are unable to protect them all down the line, risking having revealed them to the world for no return. If this doesn’t fit well with your funding timeline, speak to your attorney early, as there are ways to bring costs forward or back.

Capture and document innovations early in the process

Implementing an effective innovation capture process is crucial for systematically identifying and documenting new inventions at an early stage. This process creates a valuable repository of invention records that can be evaluated to determine the most appropriate form of IP protection, whether through patent applications, utility models, registered designs, or keeping specific innovations as trade secrets.

The most successful innovation capture processes are collaborative, bringing together patent attorneys and development teams. This partnership ensures that technical, commercial, and legal considerations inform the evaluation, enabling stronger, more effective protection strategies.

Don’t forget that trade secrets are a valuable form of IP

Not all inventions are patentable, and sometimes it’s better not to attempt patenting, as it requires revealing the invention to the world. Instead, you might keep it as a trade secret, especially for battery technology, where reverse-engineering can be tough. Ask yourself: even if a competitor obtains one of your cells and disassembles it, can they truly discover exactly what you are doing? If not, a trade secret could be more beneficial. Later, if you decide to license your technology, that license might include both patent rights and trade secret rights, each adding its own value.  

However, to have protectable trade secrets, you should be specific about what these are and have a robust policy to keep them confidential (e.g., don’t leave your key electrode formulation recipe on a Post-it on the office fridge). 

Beware, though, that if you decide to keep something as a trade secret, then someone else could patent it, which could place you in a difficult position. Consider whether the competition might independently arrive at the same invention.  

Protect the value in your brand via trademarks

As your business grows, so will the value associated with your company and product names. Consider protecting these with trademarks – remember, merely registering your company name and domain name does not give you any rights to those names.

Registering your company and product names as trademarks in key markets provides another layer of IP protection. Trademarks support brand recognition and loyalty against competing products and, since registered trademarks can be renewed indefinitely, remain valuable even once your patents have expired.

We all know where the bulk of the world’s battery manufacturing lies and where the risk of copycats entering the market late might be the biggest. Protecting your company and product names with trademarks will enable you to stop copycats and imitations of your brand. Registering your trademarks early will potentially save significant cost and stress, for example, if you try to launch in a new territory only to find an unscrupulous third party has unfairly adopted and/or registered your brand before you. 

As battery technology continues to evolve, a considered IP strategy remains essential for any business looking to bring new technology to market. By planning ahead and protecting ideas from the outset with the help of a patent attorney, innovators can ensure long-term competitiveness in this rapidly growing sector. 

Originally published in Battery Technology Magazine