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Startup and emerging companies can take a variety of actions that will move them a long way toward the systematic creation of a profound IP portfolio. Counsel for such firms should encourage and participate in proactive strategies such as the following: 1. Review employment and confidentiality agreements to ensure that they are substantively complete and legally sound. 2. Systematically and thoroughly explore challenges in the relevant industry. Identify the critical challenges that every competitor must solve to be competitive. As in most creative problem-solving techniques, use divergent thinking to list all the challenges between mind and market, and then employ convergent thinking to examine critically the relative importance of each challenge for the company and its industry. 3. For each critical challenge on the short list, step back and ask, “Why is this critical to the company and the industry?” Repeat this step three or four times, each time refining the critical challenge in light of the previous answer. If the challenge is still ranked as critical, put it on the final list. 4. Schedule a half-hour brainstorming session on one of the critical challenges at the end of each week. Do not ask for solutions during these sessions. Instead, plant the seed and request suggestions at the beginning of the following week. 5. Have team members keep engineering notebooks that can be used to document ideas, capture efforts to reduce those ideas to practice, and serve as invaluable knowledge bases that can be mined for IP. 6. When inventions respond to critical challenges, initiate constructive team discussions that emphasize the portfolio-level perspective and assess progress in identifying and protecting profound IP. 7. Consider focusing portfolio building on those inventions that protect future revenue streams. For information on subscribing to the newsletter “Advising Start-Up and Emerging Companies,” please click here.

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