Intellectual Property Rights

Introduction

One of the most complex topics that any business is going to encounter relates to Intellectual Property Rights (IPR). Its very easy to overlook how important getting this right is, particularly for start-ups and all businesses with unique products. This article provides a very brief overview of Copyright, Trademark and Patents and if you are interested please contact us for more information.

Copyright

Computer programs and other types of software are considered as literary works for copyright purposes. Therefore they receive automatic protection without the need for registration and can apply the © symbol on their products and services

Copyright is automatic and subject to the Berne Convention in 168 member countries and these include Europe, China, the Russian Federation and the US hence global!

Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (e.g. computer file), the copyright holder is entitled to enforce his or her exclusive rights.

Copyrights last a period of time equal to or longer than 50 years after the creator’s death. Longer periods of protection may however be provided at the national level.

Trademark

A trademark registration will confer an exclusive right to the use of the registered trademark. This implies that the trademark can be exclusively used by its owner, or licensed to another party for use in return for payment. Registration provides legal certainty and reinforces the position of the right holder, for example, in case of litigation.

A word or a combination of words, letters, and numerals can perfectly constitute a trademark. But trademarks may also consist of drawings, symbols, three-dimensional features such as the shape and packaging of goods, non-visible signs such as sounds or fragrances, or color shades used as distinguishing features – the possibilities are almost limitless. Once granted the recipient can apply the ® symbol against the product or service.

A UK Trademark takes around 4 months to fully process and each country will have their own timetables for new applications.

The term of trademark registration can vary, but is usually ten years. It can be renewed indefinitely on payment of additional fees. Trademark rights are private rights and protection is enforced through court orders.

You can register a trademark at three levels:

• Country
• EU – Community Trademark
• Global – Madrid Agreement

and with targeted countries rather than with all.

Patent

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.

In principle, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner’s consent.

Patents are territorial rights. In general, the exclusive rights are only applicable in the country or region in which a patent has been filed and granted, in accordance with the law of that country or region.

The protection is granted for a limited period, generally 20 years from the filing date of the application.

Once created, it is often possible to reproduce software easily at very low cost in an unlimited number.  Although copyright protection is available for “literal expressions” of software, it does not protect the “concept” behind the software, which often is a core part of its commercial value.  Since such concepts behind the software often provide technical functions, such as controlling machines or processing data, protection of software through the patent system is often available to protect such technical functions.

Generally, several approaches have been taken in protecting software by patents.  While some countries grant patents for all types of software, in many countries, in addition to, inter alia, the schemes, rules and methods of performing mental acts, scientific and mathematical theories, the computer programs are expressly excluded from patentable subject matter. However, in many of those latter countries, the computer programs are only not patentable “as such” thus making it possible to obtain patent protection for computer-related inventions having a technical character.  As reasons for excluding software from patent protection, it is often said that innovation in this field typically involves cumulative, sequential development and re-use of others’ work, and that the need to preserve interoperability between programs, systems and network components does not fit with the mechanisms of the patent system because the range of options available to the second comer may be constrained. On the other hand, some argue that patent protection of computer software is necessary in order to provide adequate incentive for investment in this field and to support innovation in various technological areas which increasingly develop together with computer technology

Patents go through an international stage followed by a national stage. The former is to assess the validity of the claim and can take up to 16 months to complete a search. The application in each nationality then follows and will require local expertise to process the necessary paperwork.

Typical costs are £4,500 for the UK side and search, another £2,500 for any work required to address challenges and £4,500 for each country that the patent is applied to.