In general terms Intellectual Property consists of four main areas which can be protected: Trade Secrets, Copyright, Patents and Trademarks.
The requirements, attributes and costs of each are different, and to be protected is never as simple as suggesting that you own a particular asset or product and therefore no one else can muscle in.
Each form of protection isn’t mutually exclusive, and it’s essential to know and understand which type is the best for you and your company to use.
Patents are most often granted to an inventor – exclusively – and this will be to ensure that his/her invention is not copied or used in any way without his/her express permission.
Whether this relates to a process or a product, an innovative or creative solution, and even newly engineered plant species or strains, the inventor must file an application at the national Patent Office.
Once approved (the invention should be non-obvious, new and industrially applicable), he/she is then the registered holder of said patent, which is valid for 20 years.
In practice, what that means is no one other than the patent holder can use, distribute, import, commercially manufacture or sell the subject of that patent without the inventors authority.
Exclusivity is terminated either at the end of the 20 year period or if the registrant assigns his/her rights to a third party, who then become sole owner of the patent.
Different Types of Patents
This covers how an invention works and is the most common patent. Depending on the invention – eg electronic, mechanical, software or chemical – the patent will cover process, compound, new and useful machine or any improvement thereof.
This covers any new design or integral part of an object that relates to the configuration, shape or appearance of said object.
This covers different or new varieties of plants, to include a plant able to reproduce using a cutting of said plant – known as asexual reproduction.
Once a solution to a problem or concept has been developed, plans will be drawn up and prototypes created to show the process or end product more accurately.
The invention is then subject to an internal review which will look at the potential flaws via a process that will rate, assess, rank and score the various parts of the invention. Anything flagged up as needing attention must be addressed by the inventor.
Once everyone is happy, a patent application will be made, which will involved various stages of submission before the Patent Office will finally sign off on the invention. The paperwork can become laborious and complicated, so it’s well worth the cost to invest in a Patent lawyer at this stage.
The holder of the patent must maintain it, ensuring that all fees are paid on time and that the patent is being used effectively. Selling it, licensing it or even donating it are options if it happens to be underperforming.
Depending on the territories where you file the application, costs can vary significantly. It isn’t uncommon for tens of thousands of pounds to be spent, as well as legal fees, not forgetting that there will be maintenance fees to keep up with for the patent’s lifetime. Another significant financial outlay.
Trademarks protect smells, symbols, signature, packaging, sound, texture, colour schemes, words, numbers and phrases – or a mixture of the same – and will assist a consumer, for example, to identify where the source of services or goods originate from.
In so doing, it ensures that the product is of a particular type or quality, and is easily understood.
A trademark doesn’t just protect one process or product, and can be used for a series of services. Established in 1957 at the Nice Diplomatic Conference, the NICE Classification or the International Classification of Goods and Services for the Purposes of the Registration of Marks covers 45 classes of goods and services. One to 34 cover goods and 35-45 cover services.
McDonald’s golden arches are covered by trademark, as is the triangular shape of Toblerone chocolate and the purple colour of Cadbury’s chocolate. Nike has a trademark for sporting equipment (to cover trainers and apparel) whilst Nike Corporation has one for heavy machinery to include hydraulic lifting jacks.
It’s important to understand that a trademark is a territorial right, so Apple, for example, isn’t registered in China under Apple Inc. That can cause issues if a similar trademark is issued and the third party then produces goods that are quite clearly below the quality one would normally associate with goods from the company in that registered name.
‘Apple,’ registered in China, wouldn’t necessarily bear any relation to Apple in the US, though consumers could be misled into believing that they were buying the same high level of craftsmanship. The damage this could cause could be irreparable to the company’s reputation.
Therefore, it’s imperative that the trademark application is filed in the country where the mark must be protected, and the classification of goods/services must be correct.
A trademark never expires.
A clear description of the mark is essential when making the application, and though government approval isn’t neccessarily required, registration gives superior protection.
You can expect to pay anywhere from £200-£300 per mark for each class code used. Government maintenance fees will need to be paid periodically, however, these are also not too expensive.
Copyrights are for things like drawings, written works, paintings or programming code for softwars. They do not protect ideas and the rights are granted to artists, authors creators and composers for ‘original’ creative works.
It’s worth noting that copyrights come into force automatically in force at the creation of the work, giving the holder all copyrights in the derivative works until the copyright expires.
This allows financial benefits to be earned by the creators of the work, and copyrights are also territorial so must be applied for in each country.
Once the copyright term expires (it runs for the lifetime of the holder + 70 years), the work moves into the public domain. If the work is created anonymously or pseudonymously, there is 95 years of protection from the date of publication or 120 from the creation date, whichever is lesser.
Copyrights must be registered with the government office, to ensure protection. This can often be obtained by an individual without the need for a lawyer or third party to be involved.
As an example, an author can give some background info and provide a sample of his/her work.
Once registered, no other can copy any part of the copyrighted text without the express permission of the author.
This is very much depenadent on the type of work to be protected. By way of example, an author looking for copyright registration will probably pay in the region of £40.
Trade Secrets will often refer to the secrets of a business, and they allow an advantage – either competitive or economical – over a rival business.
The clue is in the name because if the secret gets out, this could cause irreparable damage and financial loss to a company.
Trade Secrets will generally cover devices, systems, proprietary procedures, formulas and strategies that remain exclusive to a company.
No registration is needed for Trade Secrets to be given protection.
Google’s algorithm is a perfect example. The complete code has never been revealed.
Countries ensure that there are specific laws on Trade Secrets, and any procedures therein. It’s worth noting that Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights or the TRIPS Agreement notes a Trade Secret as follows:
- The information must be secret,
- It must have commercial value, and
- It must have been subject to reasonable security by the rightful holder to ensure the secrecy of information.
The company who has the secret must take appropriate steps to maintain it as there are no hard and fast rules when it comes to trade secrets.
Data security, physical security, restricting access, logging any visitors to the company and/or marking documents as confidential are all things that companies can do to ensure that their processes are robust.
Unlike any other IP, Trade Secrets have no official registration costs. However, there could be a good reason why your secrets need protecting, in which case there are associated costs for taking the appropriate precautions.