Just as land or property can be bought, sold, owned, licensed out or bequeathed to others, so can intellectual property or IP, even though it may be ‘intangible’ in the legal sense. It can be defined and have value, making it just as important to protect.
A company or individual must take steps to protect their intellectual property rights. Without an IP protection strategy, a business may be at risk. Secrecy about IP is essential, until protection is in place. If IP becomes public knowledge, and the competition discovers the secret, they could patent it or otherwise protect it, before the originator. It may sound like stealing, but it does happen, legally.
IP may be considered valuable enough by businesses to be listed on their balance sheets as assets. Therefore, it is highly important to protect IP not only as a valuable asset, but also to safeguard the creative inputs, processes and products behind that IP, so that the business is not jeopardised.
Register the IP
As the first step in a protection strategy, register the specific IP. Seven types of IP protection are available:
- Trade Marks.
- Registered Designs.
- Plant Breeder Rights.
- Circuit Layout Rights.
- Trade Secrets/Confidentiality.
Different IP rights provide various forms of protection. In many cases, one may have to invoke more than a single type to protect the IP fully. Patent of an IP is usually done through an intellectual property lawyer and/or a patent attorney.
The patent attorney or the intellectual property lawyer will study the creation, and describe it in minute detail to distinguish it from other similar products. Hiring a patent or IP lawyer is similar to hiring a general lawyer. Be sure to cover international aspects – laws vary.
Demonstrate ownership and keep the IP secret
In the second step of the protection strategy, take specific steps to keep the IP a secret and know how to demonstrate ownership of the IP.
Employment agreements with staff should be explicit in that all rights in any work they do whilst in the employment reside completely with the employer. Addressing any work done in their free time is harder to make watertight, but should be considered.
Keeping the IP secret
Work on a ‘need to know’ basis. A signed non-disclosure or confidentiality agreement with anyone with whom the owner discusses the idea is a necessity. This should describe the idea/object and the details about the discloser and the person with whom the details are discussed. There should preferably be witnesses to the signing of the agreement. It is important to date the document to establish the time, and place of disclosure.
Demonstrating IP ownership
Write down the idea in detail – what it does and how it works. Take detailed photographs of the prototype or make several sketches from various angles. The original documents can be copied and then sealed in a self-addressed envelope, which must be mailed back by registered mail. After receiving the envelope, be careful not to open it, and store it very safely. This will establish the evidence of the date, time and place of the original idea.
Check for infringement on another’s IP
Search websites to determine if there are other products of the same nature and application as yours. Searching saves time and money during the application for IP protection. If there are other similar products or ideas already covered by patent, or a trademark, some types of protection will not be available. Most forms of IP protection can be challenged by competitors if there is any similarity to their own IP.