The most successful international structures can show clear evidence of how their IP (and group value) was created offshore. They can clearly and legitimately show that they have placed the group’s revenue-earning ability offshore, by creating the next generation of IP in the offshore company.

Remember, your IP Strategy is a roadmap for placing your IP offshore. Its success requires clear implementation and evidence.

Be sure then to have a record of what South African (“legacy”) IP you have at the start of the process – so that you can demonstrate that the IP created offshore is new. You need to show how the human beings perform functions in your offshore company which create that new IP. You should keep evidence that the IP was created offshore by human resources who performed new product conceptualisation, development risk decision making, control of the development process and commercialisation functions.

When you plug your IP roadmap into the IP Strategy, you can then rapidly show how the evolving value of the group is owned by the offshore company. Keep an IP Ledger, recording each IP feature, linked to the evidence of functions conducted in the offshore company.  Maintain this regularly (quarterly or even monthly).

The team at Dommisse Attorneys have described their approach to the implementation of their clients’ IP Strategies here. Their solution (endorsed by the likes of the UK Government) is called www.ipincubator.co.uk and will even perform a “value transition analysis” to guide you on the transition of group value from your South African entity to your offshore entity by measuring the value of the legacy IP features (South African based IP) against the value of the newly created offshore IP – taking into account the purpose, date of creation, activation or redundancy, and the motivation for the commercial value IP of each product or feature.