An awareness of intellectual property rights and how they can be used to deter or prevent competitors from copying your products is therefore fundamental for any company that is involved in the design and/or manufacture of new or improved products or processes. ‘Intellectual property’ is the term given to a number of different legal rights that enable you to have a degree of ownership over things that have been created by you or by your employees. This means you can control the use of those things by others and prevent use of them without your consent. The four main types of intellectual property rights are copyright, designs, patents and trademarks.
In simple terms, copyright protects literature, art, music, sound recordings, films and broadcasts and comes into existence automatically on creation of the material. Designs protect the visual appearance of an article such as a piece of furniture or the shape of a mobile phone and trademarks protect a word, picture, shape, smell or sound which is distinctive and so distinguishes the goods and services of one company from those of another. It is important to be aware that none of these rights can be used to protect the way in which something actually works, such as a new or improved product, device or process. A patent is essential if protection of this type is required.
A patent protects an invention and gives its owner the exclusive right for a maximum period of 20 years to manufacture, use, import or sell a product embodying the invention covered by the patent for as long as the patent remains in force. A patent application includes a detailed written specification and drawings describing and illustrating all the aspects of the invention. It should be sufficient to enable a reader, who is familiar with the type of technology involved, to understand it so that they know what it is they cannot do without your consent and, what they will be able to do once your patent has expired or lapsed.
The term ‘invention’ can be misleading as it implies that a product for which protection is sought must be entirely new and groundbreaking. However, this is simply not the case and it is important to be aware that a patent can be used to protect relatively minor improvements to existing technology or processes. This is especially the case if that improvement results in an advantage, such as longer life or better performance, even when that improvement may only be a relatively small one.
A general rule of thumb is that if you have developed a new or improved product and/or process and you are concerned that others may want to copy it to benefit from your innovation and thereby gain a commercial advantage over you or your company, then it is very likely that a patent can, and should, be obtained for it.
As well as filing patent applications to seek protection for your own products and processes, a search through existing patent literature can also reveal valuable information relating to your competitors’ activities and may help focus your design and development efforts to ensure that you are not spending time “inventing” something which has already been thought of and described previously in an existing patent.
A review of existing patent information can also generate new ideas and act as an incentive for further improvements to known technology, as well as identify existing patents that are still in force to ensure that you are not infringing, or are likely to infringe, any patents belonging to others as a result of following a particular course of design and development.
If you are in the process of developing a new or improved product or process, it is of the utmost importance that you keep it confidential until after a patent application seeking to protect it has been filed, as even a single public disclosure of the invention prior to the filing of an application is likely to mean that your invention is no longer new, in which case valid patent protection is no longer available.
The likely consequence of this is that your competitors will be able to copy it freely and you will have no means of redress. Therefore, it is essential to seek the advice of a patent attorney as soon as possible during the development stage so that a patent application can be filed at the optimum time.
Ian Grey is a partner at Venner Shipley LLP