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Executive Summaries Aug 28, 2019

Innovation Needs Protection

Whether through years of hard work and research and development or due to a spark of genius in the middle of the night, you have come up with the next amazing product that will sell millions of units, the solution to a problem that has plagued your industry for years, or a valuable improvement to an existing product or process.

This is great! You want to tell your friends, family and clients about it. You want to put photos of it on your website and on social media. You want to publish an article about it in a scientific journal. You want to start a crowdfunding campaign. You want to find a manufacturing partner… STOP!

If your innovation has any value, you should first think about how you want to protect it. Failure to do so could result in a missed opportunity to fully exploit the benefit of the innovation for you or for your organization. Without proper protection, there is very little stopping others (including competitors) from copying your innovation which can lead to lost market-share, the loss of a competitive advantage, an inability to command a desirable price and even loss of interest from investors in supporting your business. This is why before sharing your innovation with the world, you should think about how to use intellectual property rights to properly protect the innovation.

What Is Intellectual Property?

According to the World Intellectual Property Organization (WIPO), « intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce ». Intellectual Property Rights (IPRs), including trademarks, copyrights, industrial designs and patents are government granted property rights that provide protection for that intellectual property.

Trademarks can be words and/or symbols used to distinguish the goods and services of one company from those of another. For example, the name and logo of a company or the name of a product can be trademarks.

Copyrights protect artistic and literary works and are often associated with artistic works such as books, music and movies, but copyrights also protect more technical works as well such as computer programs, engineering drawings and maintenance manuals, among other examples. This article is copyrighted.

Industrial designs protect the aesthetic look of a product; its shape, form or ornamentation. What you have developed may function the same way as existing products but if it looks different in a distinctive way, then maybe industrial design protection would be valuable.

Patents protect inventions. Products, machines, processes, compositions and improvements to any of these can be inventions. Patents will be discussed in more detail below.

Another way to protect your innovation is to keep it secret. This is known as a trade secret or confidential information protection. Although this protection may not be suitable for all innovations, for some innovations, such as manufacturing processes that cannot be reversed-engineered by looking at the final product, this protection can be quite valuable. Trade secret or confidential information protection lasts as long as you keep the secret and so certain precautions should be taken if you want to take advantage of this.

You Need a Strategy

A product or innovation can potentially be protected by more than one type of intellectual property right. Also, a product or innovation can be the subject of more than one trademark, copyright, patent, and/or industrial design.

Take your smartphone for example. It likely has a logo, a product name, and/or a company name on it. These are likely all trademarks. The computer code for each of the applications running on the phone are protected by copyright. The ringtones are also protected by copyright. The shape of the smartphone and the app icons on the screen may be protected by industrial designs. Finally, the type of glass used, the way the wireless communication works, the battery and many other aspects of the smartphone are likely the subject of multiple patents.

As you can imagine, determining what to protect and how to protect it can be complex. Securing good intellectual property protection can be invaluable, and so making good decisions is critical. To make matters more complex, most intellectual property rights are territorial (i.e. they only give protection in the country where they are registered), making the decision about where to obtain protection is important. When considering these two issues, the need for a good intellectual property strategy becomes clear.

In order to establish an intellectual property strategy, you should meet an expert. For inventions, the expert is a patent agent. Together with your intellectual property expert, you can discuss your innovation, what already exists in the field of your innovation, the targeted markets and your competition. Based on these discussions, your intellectual property expert can help you determine what should be protected, how it should be protected and where it should be protected, in a manner that is in alignment with your budget.

Patents

As discussed above, patents are used to protect inventions. A patent gives the patent owner the right to exclude others from making, using and selling the invention protected by the patent. Generally, in order to be patentable, your invention has to be new, inventive (i.e. not obvious), and useful.

One of the reasons to stop and think about IP protection before sharing your innovation with the world is because that sharing could prevent you from being able to obtain patent protection. Patents give territorial protection and most countries have what is called an « absolute novelty » requirement for granting a patent. This means that if you share your invention to others before applying for a patent, you will not be able to obtain patent protection for your invention in these countries. Two notable exceptions are Canada and the United States that give you a grace period of one year from the time you have disclosed your invention to file a patent application. Luckily, you can file a patent application in a single country before sharing your invention, and still be able to file that patent application in other countries at a later date (typically within one year of your first application). This should be determined as part of your intellectual property strategy.

In order to obtain a patent, a patent application needs to be prepared and filed with the patent office of the country where protection is desired. The patent application is then examined by the patent office and if all the requirements for patentability are met, the patent is granted.

A patent application is a document that describes the invention in detail and defines the scope of what is being protected. The best invention in the world may not be patentable if the patent application that was filed was poorly drafted, and it is very difficult, sometimes impossible, to salvage a poorly drafted patent application. It is therefore beneficial to work with a qualified patent agent.

Integrate Intellectual Property in Your Development Cycle

In order to be most effective, intellectual property should be integrated into the product development process and be in alignment with an overall business strategy. An IP professional can help identify R&D trends in your industry as well as potential risks associated with the patent rights of others. At later stages, the IP professional can work with you to ensure that the right technology is being protected in the right jurisdictions using the right IP protection mechanism, and well before any public disclosures occur. Similar integration of trademark strategies into product launches can be beneficial. For example, this could help you avoid choosing a product name, printing all the boxes, preparing all of the promotional material and ad campaigns, only to find out that this is already the subject of a trademark and you cannot use it.

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