A guide to protecting your new ideas without spending a fortune on fees
Grid Law founder David Walker offers inventive entrepreneurs a guide to creating intellectual property from new ideas, and protecting these in the most cost-effective way possible ? from how it works and looks to the brand itself. As business owners and entrepreneurs, we?re natural problem solvers. When we see a problem, we think of a solution and how we can turn that solution into a profitable business. The trouble is, these ideas are fleeting. They come and go and often we do nothing more with them. As a result, we?re missing out on new revenue streams and potential profits. So, how can we change this? We can start by thinking about these ideas in a different way. We can start capturing them and treating them as assets of our business. From now on, as soon as you have an idea for a new product, service or brand name, write it down, make a quick sketch or even draw it out as a flow chart. It?s then automatically protected by copyright. There?s no need to register it and no fees to pay. Your idea has now become a piece of intellectual property and as it starts to evolve, it has the potential to become extremely valuable. Copyright is just one form of intellectual property and it protects some ideas better than others. For example, if you have an idea for a new sales promotion, blog post or even a new system to streamline your manufacturing processes, copyright will protect it from being copied. However, copyright is not the strongest form of protection and it can?t protect you from someone coming up with the same idea independently. So, before trying to profit from your idea, it?s a good idea to consider other forms of intellectual property that may give it greater protection.
Protecting how something works
If your idea is for how something works, you may be able to protect it as a patent. Patents protect inventions, but they don?t have to relate to a whole product. Parts of products can be protected with patents too. To qualify for patent protection the idea must fulfil three criteria. It must:
Be new, which means that it hasn?t been disclosed anywhere before
Have an inventive step, which means that it mustn?t be an obvious development of existing technology
Have commercial application, which means that you must be able to sell it as a product (or part of a product)
A lack of understanding can put people off applying for patents, which isn?t surprising because even the Intellectual Property Office website says: “Patents are expensive and difficult to get.” But this isn?t necessarily true. If you know how the system works, there are ways to dramatically cut the costs of building a patent portfolio. You also don?t have to fit the stereo type of the broke inventor in a shed during the process! For example, before applying for a patent you must ensure there are no existing patents that will conflict with yours. To do this, you can carry out an initial patent search yourself via the Espacenet website to see if there is anything obvious already in existence. If you find a conflicting patent, you stop there before you have spent any money on search or application fees. If your search is clear, you can engage the services of a patent attorney to carry out a more detailed search and help you with your initial patent application. As soon as the initial application is filed you can say you have a ?patent pending?. This sets a priority date for your invention and is the date that your patent will retrospectively give you protection from, once it is finally granted. You then have up to 12 months before you must proceed to the next stage of the application process and during this time, you can really explore the commercial potential for your product. Ideally, you will even make initial sales of your product and the proceeds of these sales can be used to fund the rest of the patent application process.
Alternatively, if the product doesn?t fit with your core business you could sell or licence the idea to another business, which again is revenue for you.
If, at the end of the year, you decide that the idea doesn?t have the commercial potential you hoped for, or you haven?t managed to sell or licence it, you don?t have to continue with the application. If you abandon the application at this stage you won?t have spent a fortune and you can move on to your next idea. You may also find that the process of applying for patents generates press coverage that can benefit your business as a whole. If it does, make sure you manage the situation carefully so that it?s as positive as possible. Uber didn?t do this when it was in the press recently. You may have seen headlines such as ?Uber applies for patent to spot drunks?. This wasn?t what the patent application was for. The patent application was for a system for ?Predicting user state using machine learning?. Whilst detecting drunk passengers is a possible application of this artificial intelligence (AI), Uber received a great deal of criticism because it could theoretically also be used to detect vulnerable users. Uber commented: “We are always exploring ways that our technology can help improve the Uber experience for riders and drivers.? “We file patent applications on many ideas, but not all of them actually become products or features.”
I?m surprised that Uber didn?t use this opportunity to put a positive spin on the story.
If your idea is for how something looks, rather than how it works, you may be able to protect it as a registered design. To be registerable, a design must fulfil three criteria. It must be:
Original (i.e. not a common design)
Have individual character
Not be specifically excluded from protection (for example be the surface design of a product or be purely functional)
Registered designs are generally cheaper and easier to obtain than patents, but you don?t have to make your application straight away. Designers have a 12-month grace period from first disclosure of the design before they have to file their application. Just like with the patent application process, you can use this grace period to explore the commercial potential for the design. If it has potential, you may be able to start selling products and generating revenue from the design before you have spent any of your own money trying to protect it.
Protecting a brand
If your idea is for a new brand name (or perhaps a catchphrase or the design of a logo) you may be able to protect it by registering it as a trade mark. To be registerable as a trademark, the new brand must:
Be capable of being represented graphically (i.e., you must be able to write it down or draw it)
Be distinctive, not descriptive of what the product or service is or does
Not be excluded from protection (for example it must not be a national flag or indicate the geographic origin of the products or services it is applied to)
There are no grace periods when making a trade mark application but you don?t have to register it straight away. You can start using the brand before registering it to see how well it?s received. But be careful because it won?t have any meaningful protection until it has a strong reputation. This will take time to develop. Therefore, if your gut feeling is that it has the potential to be a strong brand for you or someone else, I?m in favour of registering it sooner rather than later. As you can see, if you think of your ideas as potential assets of your business you?re more likely to do something with them. If you then use the legal system to your advantage, you can start making money from these ideas before committing your own resources to protecting them. If you have any questions about protecting your ideas or how to use intellectual property rights to give your business a competitive edge, please feel free to email me at email@example.com. You may also like to watch my webinar which covers some of these ideas in more detail
David Walker is the founder of Grid Law, a firm which first targeted the motorsport industry ? advising on sponsorship deals, new contracts and building of personal brands. He has now expanded his remit to include entrepreneurs, aiding with contract law, dispute resolution and protecting and defending intellectual property rights.
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