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Executive Summaries Sep 15, 2020

Intellectual Property: An Incentive to Create and Invent

By

Thibault Grillon, Julien Lacheré

What does intellectual property mean to you? Is it a nebulous concept that you heard of years ago? Maybe you tried to learn about it, but it still appears as a vast and unclear domain? Here is the first of a series of articles that will give you the tools to understand and, more importantly, leverage intellectual property in your development strategy.

Historical Origins of Intellectual Property

The intellectual property (“IP”) system is believed to have been implemented around 800 BC when the Sybarites, a Greek colony in Southern Italy, “made a law that [...] if any confectioner or cook invented any peculiar and excellent dish, no other artist was allowed to make this for a year [...] in order that others might be induced to labour at excelling in such pursuits”, according to Athenaeus: The Deipnosophists (translated by C.D. Yonge).

From the beginning, IP has stimulated creativeness by protecting the inventor so that he may enjoy benefits of her/his invention. Nowadays, IP covers more than peculiar and excellent dishes but the spirit of fostering economic growth by granting exclusive rights to the inventor remains.

The Four Pillars of Intellectual Property

Intellectual property is a broad expression covering legal rights regarding inventions, confidential information, artistic expressions such as literary and artistic works; and symbols, names and images used in commerce. The term "property" relates to ownership and corresponding legal rights, while the term "intellectual" indicates that IP is targeted towards intangible creations rather than physical products. Depending on the IP strategy you decide to put in place, you may use different types of IP rights.

Patents

Patent offers the inventor the right to exclude others from making, using, or selling his invention for a limited period of time. In return for this monopoly, the inventor must disclose the invention to the public to enable a person skilled in the art—a person who is knowledgeable in the field of the invention—to carry out the claimed invention. One of the most famous patents is Thomas Edison’s patent to the light bulb, granted in 1880. The form of Coca-Cola’s famous bottle has also been the subject of a design patent, a specific type of patent relating to industrial design rights, granted more than 100 years ago.

Trade secrets

Trade secret prevents others from sharing confidential information that:

  • is maintained as a secret;
  • is economically valuable; and
  • is unknown to others, such as Coca-Cola’s recipe.

If the trade secret is somehow disclosed to the public, the protection on the trade secret is lost. However, it may last forever if it is properly maintained.

Copyrights

Copyright prevents the reproduction, distribution, and creation of derivative works of an original artistic work, such as Coca-Cola’s logo and script design. Therefore, it gives the author/owner the exclusive right to make copies of the artistic work, usually for the life of the author and an additional limited time.

Trademarks

A trademark is a word, symbol, color, musical phrase, or other marks indication of the origin of a given good or service, such as Coca-Cola’s name. It offers the right to its owner to prevent others from using similar marks for similar goods or services. However, it is important to note that it does not prevent other from selling the same goods under a different word or brand name. That is why trademarks and patent protections may be combined together.

The forms of IP rights described above define the fundamental pillars of IP law that are typically combined to define a company IP strategy.

A Business Asset and a Competition Catalyst

Researching, developing and marketing an invention usually comes with high economic costs that may deter people and companies from innovating. A role of IP is to provide a legal mechanism protecting the inventors so she/he may enjoy a monopoly on the economic use of her/his invention. Therefore, costs related to the creation process may be balanced by economic profits resulting from that monopoly.

There are plenty of reasons why you may want to leverage IP, such as protecting and/or advertising a competitive advantage, deterring lawsuits, or boosting investment. IP is a vast domain where innovation and economic interest meet. Thus, it is important to create and integrate an Intellectual Property strategy as early as possible in your business development plan.

Before [the adoption of the U.S. Constitution], any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this … and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.

Abraham Lincoln

BCF’s Intellectual Property team can help optimise the value of your innovations. Should you have any questions regarding this article or intellectual property in general, please do not hesitate to contact our team.

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