“Alternatives to Patents” Jane Lambert Leeds Inventors Group 20-05-09
Many people who come up with an idea for a new product tend to assume that they must get a patent, but Jane pointed out that while some people do need patents some businesses have actually been ruined by having too many. This was the issue which Jane looked at in her talk.
The reality is that 90% of patents which have been filed are never actually worked. Patents are worthwhile for a small minority of inventions (often belonging to the big companies) but it is important to realise that they are expensive. Getting a new product on to the market is often not easy and if you have a patent but no product you will be in debt. It is also important to realise that a patent can be revoked at any time.
So what alternatives might there be? One possibility is Trade Secrets. If you apply for a patent you will have to disclose details of the invention and have them published. Some products have based their success in not using patents and not disclosing details of them – the formulas for Coca Cola and Chartreuse are two famous examples.
Obviously any disclosure would destroy the secret and the product would have no protection. The use of confidentiality or non-disclosure agreements can be helpful. If such an agreement is not used the person receiving the information still has an obligation of confidentiality providing that they are aware of the fact that the information they receive is confidential. This obligation remains for as long as the information remains secret.
Typical subjects of trade secrets include the source code of computer programs, customer lists, recipes and formulas (providing they can’t be easily reverse-engineered) and inventions before a patent application has been made.
Jane pointed out that all staff in a company which holds trade secrets should be trained to be aware of, and respect, those secrets. Computer files should be password protected and documents kept secure. All disclosures should be logged, dated and written up. All confidential documents should be numbered. It is also important that any non-disclosure agreements relate to the specific situation in which they are to be used.
Unregistered Design Right is another means of protection. It protects the whole or part of the shape or configuration of a particular article, whether internal or external. It doesn’t include surface decoration and it doesn’t protect an article whose shape is determined by how it must fit together. This right is automatic and free.
It has been available since 1st August 1989. The creator must be a citizen of the European Economic Area and the product must have been first marketed in one of those countries. It lasts for 15 years from creation or 10 years from first marketing. In the last 5 years anyone, including an infringer, can apply for a “licence of right”.
Copyright is an automatic right which tends to be thought of in relation to artistic, literary, musical and dramatic works. However it can also cover logos, patterns and surface decoration of an article.
Copyright infringement has to be proved. In order to do so some copyright owners set traps – for example putting a certain number of false addresses in a phone directory. If the directory is copied the false addresses will indicate this.
Trade Marks Particularly if your product is not patentable you can sometimes add value or good-will with a trade mark. If customers associate your product (and in particular the quality of your product) with your mark it can become very valuable to you. A registered trade mark has to be applied for and fees paid. However an unregistered mark can give you a certain amount of protection if you build a significant reputation in your particular field.
Some countries also have “utility models” or “innovation patents”. These give a more limited protection than full patents. They have not been available in the UK since the 1930s though Jane feels that they would currently be an advantage to inventors and SMEs.
Jane summed up by pointing out that patents (and the other forms of intellectual property) are a means to an end – they are a deterrent. However constantly developing new or improved products is always likely to be the best way of maintaining your market. Using business tactics such as cutting costs, improving advertising etc can be just as important.