The term ‘IP’ or intellectual property refers to unique, value-adding creations of the human intellect that result from human ingenuity, creativity and inventiveness and is applied to patents, trade secrets, utility models, registered trademarks, geographical indications, industrial designs, layout designs of integrated circuits, copyright and related rights, and new varieties of plants.
Having said that it is worth pointing out the golden thread that runs through all IP and binds it all together, which is novelty, newness, or uniqueness. In fact the three crucial success indicators for the granting of a patent are:
- Applicability to manufacture.
Basically we can’t patent an idea; the invention has to be the embodiment of an idea. Patent rules state that we can file for patent protection for novel functions which are not obvious to someone skilled in the art of that technology and which have applicability to manufacture.
The most common mistake people make when they have thought up what they consider to be a brilliant new idea which they don’t want anyone else to know about yet and which they believe could make them a lot of money is to file a patent application too early in the product development process, believing that’s the best timing and route to claim the monopoly on that idea before anyone else. It may be the best route but it is definitely the wrong timing.
It should be noted that once a patent application is filed it is set in stone and cannot be changed without changing the filing date. Many people have lost thousands of pounds through jumping the gun in this way, because no idea has ever hit the marketplace exactly as it was first conceived. How to patent an invention and how to patent a product is firstly to exercise restraint and adopt a business-proven strategy to minimise financial risks, whilst maximising commercial opportunity.
This means delay filing until the last moment before publicity when all professional design and development work has been concluded to ensure all novel elements of the invention are accounted for and the invention is ready for tooling, manufacture and sales. To make an invention fit for market the design process can take many months or years and often shows up flaws in the invention along the way, either engineering, financial or marketing which are sufficient to change design emphasis, change design direction or to terminate the project with minimal financial loss at the development stage.
This should all happen prior to considering filing any patent application.
These days software is involved with many novel products and many inventors and businesses are keen to protect software. It is worth pointing out that in the UK applying for a patent for software without any element of associated hardware will be rejected by the patent examiner. This is because pure software is not a product. It will have function but that function must be shown to have an output into a novel product. Because software is continually being upgraded it is pointless setting a particular series of algorithms in stone for 20 years in a patent. In all probability a particular piece of software will have been superseded in a few months and be worthless to anyone wanting to copy it. The essence worth protecting is the function and /or processes of the surrounding hardware.
Filing a patent is like drawing a line in the sand – come no closer – it’s a legal process, straight after filing the clock starts ticking. You have 12 months to decide in which other countries to file, or stay in UK, or abandon. 18 months after filing, every patent application is published, which means the whole world will be able to see your invention in detail and understand exactly how it works, usually before it is granted. Not many inventors realise this. In terms of product development timescales 12 months for an invention to get to market from the idea stage is considered very quick.
But there must be a way of protecting your idea, because it must be divulged to professionals in order to get it moving. Thankfully there is. The first piece in the jigsaw puzzle of new product development is the NDA, or Non-Disclosure Agreement. This is a legal document which, when signed binds the receiving party from disclosing your invention for a period of time, taking advantage of you by stealing it and also keeps the invention out of the public domain for potential patent purposes. This is crucial, because fledgling ideas are often still-born due to many factors, not least of which is lack of novelty in the marketplace, or impracticality, or just being too expensive, or not a sufficiently inventive step.
As far as possible we need to determine novelty through patent and internet prior art searches. Patent searching is a skilled process involving studying databases and keywords which are taken from the title of the invention to narrow down search fields.
Freedom To Operate (FTO) prior art searching has three benefits:
Firstly – assesses whether you are going to tread on anyone’s toes by manufacturing your invention and thus infringing a live patent, Secondly – gives you the knowledge of whether what you are planning to develop has been done before. If so forget about a patent. Thirdly – gives you a measure of confidence knowing that you could actually apply for a patent because what you are developing is novel and not obvious to someone skilled in the art of that technology. If granted you then have the right to exclude all others from commercially benefitting from it.
Summing up the benefits of a granted patent:
- Gives legal rights to stop others using your invention.
- Its existence may be enough to deter competitors
- Buys time (20 years) in which an inventor can develop a market to the product or process
- Attractive to investors as it limits competition
- Becomes a business asset with a value on the balance sheet
- Can be licensed or sold
- Qualifies for the owner a reduction in corporation tax through the Patent Box.
If you are clear to manufacture your invention but not apply for a patent you can always check out the design registration route to protect the appearance and a registered trade mark to protect the brand name.
Unlike patents a design registration may be applied up to six months after a three dimensional article has been published in any media or launched into the market. Just like patents the article or product must be novel, but in external appearance only. Protection does not cover the function or any internal workings or parts which are unable to be seen from the outside. Because of its considerable cost effectiveness design registrations are a very popular route particularly for products these days which have a short lifespan, before upgrade. Also design registrations are valid initially for a period of five years. They can be renewed however every five years up to a maximum of 25 years.
Where a product is going to evolve every year or so it is probably not going to be cost effective to apply for either of the two IPs explained above. Nevertheless patents and design registrations are used as defence strategies and kept live as barriers to entry against competitors while they move on with new ideas. For the SME or inventor this strategy is not a financial option, therefore a registered trademark is the best way to protect the reputation of the product brand as it grows and the design changes in the market place as it evolves over the years. Registered trademarks can be maintained every 10 years and last indefinitely.
Bluefrog are here to give you that all-important guiding hand through the patent and intellectual property process. From your initial idea through to your launch to the marketplace, you can rely on us to help you with our patent attorneys to file the right details at the right time.
If you’d like to know more about Bluefrog Design and how we could help protect your ideas and projects please click here or call us on 0116 2530612.