Member Article

World Intellectual Property Day: Protecting your big idea

Many businesses begin life as a simple idea, but how many entrepreneurs realise the importance of protecting their intellectual property (IP) at an early stage?

On World IP Day (26th April 2021), business owners and entrepreneurs are being reminded of the importance of protecting their ideas before sharing them with lenders or prospective partners. While the internet has become a valuable tool, helping start-ups to get established quickly in their chosen markets, it has also heightened risks by increasing the likelihood of IP theft.

Patents can be obtained to protect the features and processes that make a new product unique, for a period of up to 20 years. As well as preventing competitors from copying their ideas, patent protection can also enhance their market value. Despite the commercial benefits, many business owners still fail to obtain patent protection at the appropriate time, which can mean they miss out on the opportunity to commercialise their ideas. Here are a number of things to consider when applying for patent protection for the first time:

Avoid early disclosure

Before any information regarding an innovative product becomes public knowledge, it is crucial that a patent application is submitted. Regardless of how tempting it might be for entrepreneurs to spread the news about their invention at an early stage, doing so without patent protection could have serious consequences. Disclosing information to external parties before seeking commercial protection could cause a patent application to be rejected, or even invalidate an existing patent, if evidence of this is uncovered at a later date.

Where possible, talks regarding the innovative product should be delayed until a patent application has been filed. However, if the business owner wants to discuss the product in more detail with an external party, before seeking patent protection, it is essential that a robust confidentiality agreement is in place.

Ask an expert

Ensuring that the patent application is well written will strengthen its chances of being granted by the UK Intellectual Property Office or European Patent Office. A poorly worded document could be rejected, even for the most innovative of products. The application should be clear and concise, to ensure competitors are unable to design around the granted patent. It should detail exactly what the product is, how it works, how it is produced and what makes it unlike anything else.

Furthermore, the claims of the patent must define only the essential features of the invention and the application should be drafted in a way that would enable the innovator to prove infringement if necessary. As well as having an understanding of the patent process, seeking expert advice from a specialist patent attorney can help to ensure that a strong application is produced.

Consider global reach

Businesses that buy and sell goods globally are likely to have global competitors and should consider that IP laws are not the same in every country.

Early disclosure rules are strict in European countries. However, in the US, entrepreneurs are given a one year ‘grace period’, when they can share product information before applying for a patent. Problems could arise however if a US-based business discloses information over the internet (which might be accessible to UK users), as this could result in failure to get patent protection in the UK further down the line.

Businesses should map out their potential expansion plans from the outset, as having patent protection in one country does not prevent your product from being copied and sold in another. Having a robust plan in place can help businesses obtain patents in countries of interest at an early stage, and avoid being pushed out by competitors.

Don’t be put off by the costs

The initial costs of obtaining a patent are significant, but the commercial benefits largely outweigh this. Although many companies choose to use the patent to manufacture and sell the product themselves, there are other ways to generate a return on their investment. For example, this could be achieved by selling a patented invention or licensing it to a third party, in exchange for royalty payments.

Businesses shouldn’t be put off by the idea of legal costs of IP enforcement. It is rarely necessary to go to court in cases of patent infringement. Informing an infringer of your registered rights is often sufficient to deter them from bringing a rival product to market and it is usually possible to reach a commercial settlement. IP insurance policies are also available to protect against any litigation costs.

Well-rounded protection

When protecting a new technology, patenting is obviously key. However, it might also be worth investing in other types of IP protection. For those looking to grow their idea into a business, trade marks can provide a badge of origin and help to create market value. Providing the renewal fees are paid every ten years, trade mark registrations are valid indefinitely and can help to strengthen market visibility. Registered design rights should also be considered if a new product has innovative packaging or a unique appearance or functionality that requires protection.

World Intellectual Property Day is emphasising the importance of protecting IP, with patents, trade marks or design rights. Having a clear business strategy and seeking specialist advice will ensure that entrepreneurs don’t miss out on opportunities to commercialise their big ideas.

By Adrian Tombling, partner and patent attorney based at the Munich office of European intellectual property firm, Withers & Rogers.

This was posted in Bdaily's Members' News section by Withers & Rogers .