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Starting a business? : Intellectual Property
Intellectual property includes any result of mental endeavour (eg research)
which can be identified as belonging to an individual or organisation. It
has rights of ownership, which can be protected by law. It is an asset which,
like any other kind of property, can be bought and sold or hired out. Intellectual
property can be protected by Patents, Registered Designs, Trademarks or Copyright.
Many products are protected by all of these.
Some intellectual property rights need to be registered; others exist automatically.
The three main registered rights are patents, registered designs and trademarks.
A patent can be granted to an inventor by the government for an invention.
A patent gives the inventor the right, for a limited period (20 years in the
UK) to stop others from making use of his/her invention without the permission
of the inventor. The laws relating to patents are different in different countries.
A patent is a piece of property that can be sold or hired out (licensing)
by the inventor.
It can relate to a new product, a new organism, a new chemical process or
method of manufacture, a new machine or piece of apparatus, or a new use or
application for an existing product. Patents are concerned with the technical
and functional aspects of products and processes.
It relates to a particular part of the world eg UK, USA, Europe, Japan. If
you wish to protect your IP in several countries, you will need to apply for
several patents.
Benefits for the inventor:
Gives the patent holder a monopoly so that they can charge a premium price
for the product.
Gives them a legal right to challenge a competitor who infringes the patent
Gives them a right to allow others to work the patent (licensing) and claim
royalties (possibly in several different countries)
Gives the inventor the right to sell the patent to another company - an inventive
firm with little capital may choose this route.
A common misconception is that a patent will keep your invention secret -
in fact it does the opposite - this may be something to bear in mind when
choosing how to protect your IP. However, having a patent makes a company
more attractive to a financier and makes a product or process idea easier
to license..
A patent does NOT give its owner the right to use his or her patent - if someone
else has a dominant patent over a similar product, you may have to buy a licence
to use the dominant patent.
Benefits to the state:
Describes the invention in a detailed way so that any person 'skilled in
the art' could produce it - protects but spreads knowledge
Provides technical information which can be useful when the patent expires.
Provides a useful resource for other inventors, and stops people reinventing
the wheel.
Generates revenue (eg registration & renewal fees, tax on company profits,
VAT)
Not all inventions can be patented. To be patentable, an invention must
- Be new or novel. This means that it must not have been made public in any
way before the patent application is filed. The patent examiner will search
extensively to see if you or anyone else has revealed the invention. For the
inventor, confidentiality is of paramount importance prior to filing.
- Involve an inventive step. The invention must be more than good design.
What is invented must not be 'obvious'. This is a subjective area and the
cause of much correspondence between examiners and patent agents.
- Be capable of being made or used in some kind of 'industry'
- Not be in a category which is excluded eg scientific theory or mathematical
method
Registered Design
This relates to the shape or configuration or outward appearance of an article.
It is filed in the same way as a patent and lasts for a maximum of 25 years
in the UK.
Trademark
A brand name or trademark can be registered with the Patent Office. It lasts
for an indefinite period but must be renewed every 10 years. It gives you
the exclusive right to use this trademark, or alternatively you can sell it
or license it.
Copyright
This a method of protecting an original creative work, eg a work of art, a piece
of music, computer software, a piece of literature or even the dust jacket of
a book
Copyrights on computer software cover the algorithm not the code. Copyright
costs nothing and does not have to be registered. Copyright lasts for 70 years
from the author's death for an authored work (book, music etc), 50 years for
sound recordings, 25 years for other works.
Copyright exists automatically but it is good practice to mark documents
as copyrighted to deter infringers. To do this, add to the original work the
copyright symbol © (alt, ctrl c on the keyboard) together with the name
of the originator, and the date. For additional evidence of the date of generation
of the original work, the item (eg document) can be sealed in an envelope,
you should obtain proof of posting, and post it to yourself! Agencies also
exist that can give you evidence of 'registration'. There is no requirement
to do this but it can be powerful evidence if you take action against an infringer.
If anyone illegally copies or plagiarises your copyright material, you can
challenge them by law, but you can, if you wish, grant permission to reproduce
certain items.
Costs of protecting your IP
Copyright costs nothing.
Registered Designs,Trademarks and Patents all have formal fees which vary
from country to country. It is also good practice to use a patent agent to
ensure correct procedures are followed and especially to ensure that drafting
of the specification and claims are properly done.
The following are indicative figures. Individual cases can be more or less.
The figures include the use of a patent agent.
Costs of patenting:
UK Provisional Application: £2000
PCT (full) Application: £3,000 - £5,000
National filings in major economies: £3,000 per country (mainly translation
costs)
Annual renewal fees after grant: £500 - £1,000 per year
So, to obtain a patent in say 20 countries may cost £50,00 or so - more
if examiners reject claims and you and your patent agent need to argue.
To maintain a patent in 20 or so countries for its 20-year life may cost up
to £250,000 - and appreciably more if you need to take action against
infringers.
Patent legal expenses insurance exists and many small companies find this an
excellent investment.
Key Web-sites:
UK Patent Office - information, forms
and procedures
The European Patent
Office
The US Patent Office
The World Intellectual Property Organisation
IPR Help Desk
British Library - offers an on-line search
facility for existing patents and holds a database of patent agents
Association of University
Research & Industry Links (AURIL) - list of UK University patents
Delphion - a worldwide search engine
for patents already granted
Or any local Business Link site (the North
Yorkshire one is particularly good):
www.here4business.co.uk
Texts:
Davis, Jennifer (2001) Intellectual Property Law. Butterworths
Phillips, Jeremy & Firth, Alison (2001) Introduction to intellectual
property law. Butterworths
Check out the patent office web site
for more information.
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