Intellectual property (IP) isn’t just important to your business: it is your business. There’s a good chance the majority of start-up capital spent at a business goes straight into IP; whether it’s a logo, advertising copy, software or a product, fundamentally IP is the fruit of all the hard work that goes into a thriving enterprise. And because of this it’s essential you make sure it’s carefully protected.
When does protecting your IP need to start? Right from the get-go. David Warrilow, patent and trademark attorney at London IP, believes it needs to be looked at from two perspectives. “There’s protecting it and there’s also checking it doesn’t infringe on anyone else’s intellectual property,” he says. Given almost any venture, regardless of size or aspiration, will at least have a name to build its brand around, this is a good place to start.
“Any company, should be checking to make sure its name doesn’t infringe any registered or unregistered trademarks,” he continues. After this it really is worth playing safe. “Trademarks are essentially on a first come, first served basis, so it’s always best to get an application in as soon as possible.”
Patents are more complicated beasts. “Again a company should be checking that their product or process isn’t going to infringe upon any patents, although that can be expensive,” he says. After this, the next major – albeit understandable – mistake companies make when they come up with an exciting new idea for a product is spilling the beans too early. Wanting to get things kick-started and go to funders as soon as you can is admirable but it’s an error that can cost businesses dearly. “They should also make sure that if they want patent protection they file an application before any non-confidential disclosure of the invention,” Warrilow warns. “You can’t get valid patent protection in most of the world unless you file before any disclosures.”
But it’s not just the work your employees carry out that you need to be mindful of. As Steve van Dulken, information and patent expert at the British Library remarks: “One essential thing to remember, though, is that if you commission someone else to do work it’s important that there’s a contract that states all intellectual property created belongs to you.” For example, if your logo or website is designed by a third party, they will by default retain the rights unless it is clearly stipulated in the contract. “If you aren’t clear about ownership in the contract then if they go bankrupt, the website, for example, belongs to whoever ends up with assets of that company,” van Dulken explains.
Often, though, it’s not all that clear what actually constitutes IP. “A frequent question I get asked is about presentations or methods of delivery; they say ‘I have a particular method I use for teaching’ or ‘I do this on my presentations and how do I protect it?’” van Dulken says. “I have to tell them ‘I’m sorry, but there is no way of protecting it.’” It’s easier with things that are tangible; writing, graphics, products and branding are relatively easy to protect. But with more abstract matters it becomes a little harder.
Processes can be patented under certain circumstance. Van Dulken gives a simple example. “You can patent a method for making, for example, a stapler,” he says. “If it’s a new method for making a stapler, a different or better method, that makes it a more efficient or a cheaper stapler, then that could be patented.” But unfortunately there are many unique facets of your business that you can’t protect. For many enterprises, the nature of their service is what sets them apart, but there is no way of defending this from imitation. As van Dulken explains: “A business method or a technique is not patentable in itself and that’s a real problem.”
However, cliché though it is, sometimes it is better to be safe than sorry. If you come up with something new that you feel isn’t well-protected under your existing patents or trademarks then Warrilow advises that you still seek legal advice. “If you do come up with something new that may have an advantage, consult with a patent attorney,” he suggests. “It’s worth checking to see whether or not it might be patentable before you disclose it because you won’t get a second chance to protect it.”
Just because you’ve got some defence on the home front though doesn’t mean that you’re protected on the global stage. Patents and trademarks apply by territory, and businesses need to make applications in every single one of those territories. But, given the fact that James Dyson claims that every invention he makes costs him £40,000 in international patents, is it a justifiable cost if you’re not ready to expand?
“Start off by concentrating on your main market,” offers Warrilow. “There’s no point in paying to protect intellectual property in countries where you aren’t trading or aren’t going to be trading for the foreseeable future.” However, van Dulken has a slight caveat to append to this advice. “The only problem is you have to apply abroad for rights in those countries within six months of the design or within 12 months if it’s a patent – it’s what’s called the Paris Convention,” he explains. If, at a later date, you actually do decide you want to expand you will have lost your chance of exclusivity. “If it’s outside of those dates you might have missed the boat.”