We hear about “the knowledge economy”, intellectual capital, the value of inventions, technology and being creative. But not everyone is clear on what it means; what is involved; how it can help your business and how to look after what you create – particularly if it is an idea and is not “tangible”.
Different Types of IP
Set out below is a nuts and bolts guide to the very basic parts of intellectual property, giving you a thumbnail guide to the subject. Intellectual Property (or IP for short) is the right or property in “the creations of the mind”. It is a way of ensuring that creativity and invention can be protected (and potentially monetised) and it enables, encourages and rewards creativity and progress by establishing “rights” (or IPR) in those creations or inventions. These rights can then be exploited for financial gain.
There are different types of IP, falling into the following categories:
- Trade Marks
More current, and a form of IP, are rights in databases. As data becomes a more valuable commodity, database rights become especially relevant. Databases are principally protected by copyright but further information on database rights is set out below.
So what are these types of IP and what do they protect?
Patents are registered rights (like Trade Marks, but unlike copyright) which protect innovations i.e. new products, new processes. They need to have an inventive step and have not been in the public domain before. Patent protection is done on a country by country basis (hence the need to file patents to provide protection in different countries). Patent protection usually lasts 20 years. Patent protection stops any other person exploiting the innovation (i.e. by selling a product that uses the same technology) without the patent owner’s consent.
Again a registered right, a trade mark protects the distinguishing characteristics of a product or service and prevents third parties from using the distinguishing characteristics in selling their own products or services. For example Coca Cola or Apple are trade-marks that protect goods. Trademarks are often names, shapes and logos (or a combination of these). They can in most cases be renewed indefinitely to provide protection. Unauthorised use of a trade mark will enable to owner to prevent that sale of any products that “Infringe” the trade mark rights.
Worth mentioning that unregistered trademarks also exist however these are harder to protect than registered marks.
Design rights protect the shape or appearance of the whole or part of a product. To qualify for protection, a design must be new and original. Design protection is intended to stop other people making products which look the same or are identical to the original. There are different types of design right that coexist in the UK and depending on the applicable right, protection can last up to 25 years.
Copyright is the right in the creative work and the right to have protection against it being copied. It is the principal way of protecting software, i.e. to prevent people copying the software source code. Unlike patents and trade-marks, copyright is not registered and exists depending upon the nature of what is protected. The duration of copyright will vary for different things protected e.g. literary works, films, sound recordings. Literary works are usually the life of the author + 75 years; other copyrights shorter. Copyright can also exists in, and protect, databases. Infringement of copyright does require proof that there has been “copying” of the original work, so creating something from scratch which does not use some previously written material is unlikely to constitute copyright infringement.
What is the value of IP?
IP has a value in that it can be used to prevent a competitor from using your ideas and competing with you. If for example you have invested time and effort in building a “brand” you can stop someone coming along and trading off your brand (and your investment). You could also stop them selling products which look the same (it is called “passing off”).
Further, where you have IP, you can licence that IP to others, granting them the right to use that IP in return for a royalty or payment to you. Such licence agreements will specify the amount payable to you, the period, the territory and other conditions applicable to the rights granted to the “licensee” to use the IP.
The obtaining of IPR, such as patents and trade-marks, does have cost, in terms of fees to create the patent as well as fees for filing and maintaining any registered IP.
Other types of IP?
As mentioned copyright covers a number of key commercial areas – software and databases. The right prevents people using software or databases that you may have invested in developing to prevent you losing the value of such investment. For example, you may have copyright in a database of customers or contacts which will have business value to a competitor.
There are other ways of protecting IP which can have value for companies. For example most companies have “Confidential Information”. This may be customer information, it may be secrets about a process or how you do things. Which these may be protectable in their own way though IP protection (copyright, patents etc) ensuring that the information remains confidential to you, is of equal importance. Ensuring that any disclosure is covered by obligations to protect that information can be in valuable.
The law and complexity in IP, its protection and exploitation has grown significantly. It is a complex area. However, it can be the key tool in maintaining the competitiveness of a business and in our “knowledge” economy is only going to become more important to businesses. Make sure you look after your IP.
Written by David Roberts
Principal at My Inhouse Lawyer
One of our values (Growth) is, in many ways, all about cultivating a growth mindset. We are passionate about learning, improving and evolving. We learn from each other, use the best know-how tools in the market and constantly look for ways to simplify. Lawskool is our way of sharing with you. It isn’t intended to be legal advice, rather to enlighten you to make smart business decisions day to day with the benefit of some of our insight. We hope you enjoy the experience. There are some really good ideas and tips coming from some of the best inhouse lawyers. Easy to read and practical. If there’s something you’d like us to write about or some feedback you wish to share, feel free to drop us a note. Equally, if it’s legal advice you’re after, then just give us a call on 0207 939 3959.
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