Protecting your intellectual property
First published on 28 of February 2019 • Updated 28 of February 2019
If you’ve spent months developing your flagship product or service, the last thing you want is other companies pinching your ideas. This means giving some serious thought to safeguarding your intellectual property. You’ll also need to think about how to value your intellectual property, and how this contributes to the overall value of your business.
What is intellectual property?
Product development takes time and money, from the initial market research all the way through to fine-tuning via customer feedback. Any innovative product will have to recoup all those costs by being commercially successful – which is why many businesses will, if they can, attempt to emulate and modify an existing product rather than take the trouble of developing one from scratch. This unfortunately can give them a competitive advantage over you, because they don’t have so much ground to make up.
The good news is that you can protect key aspects of your product, such as how it is made, how it works and what functions it performs. These aspects are your intellectual property, and under UK law there are ways you can prevent them from being copied.
The term intellectual property refers to any unique asset you use as part of your operations. It can be anything from your logo to your packaging, but is mostly used for products. Remember that an idea alone doesn’t qualify as intellectual property – it has to be something that you have created or utilised.
Automatic protections on intellectual property
There are two kinds of protection for intellectual property that apply by default – you don’t have to take any action to benefit from them. These are:
If you create original writing, content, art, photography, film, music or sound recordings, you will likely be automatically protected by copyright law. This means that you can take legal action against anyone who tries to claim your creations as their own and use them for their own gain.
For a small business, copyright applies to anything created by an employee during the course of their working duties. If you take your own photos for marketing campaigns or write all your own web content, these will be protected by copyright law.
2. Design right
The shape and configuration of objects have automatic protection for 15 years (from the date of creation) or 10 years (from the date of the first sale). This means that another company can’t mimic your distinctive designs as soon as you’ve released yours.
Protecting other kinds of intellectual property
Creative content and designs are protected automatically, but to safeguard other kinds of intellectual property you will have to be more proactive. In the following cases you’ll need to contact the Intellectual Property office, and you may also want a legal specialist on board.
Logos, images and slogans are often fundamental to your brand recognition. If you trademark your unique business identifiers, you help protect the distinctive personality of your company.
To get a trademark, you must be trying to protect something completely unique that is not misleading. It also can’t describe the goods or services being provided, so (for example) you won’t be able to trademark the words ‘hamburger’ or ‘coffee’. You’ll have to pay for the application, so make sure you do your due diligence properly.
You can register the way your products look as unique to your business. Registered designs can be applied to the way an asset looks, its shape and the way it is configured (the way its different parts are arranged together).
If you have invented something that is completely new, or performs a function in a completely new way, you can protect it through a patent. Patents apply mostly to machines, components, tools, medicines and other pharmaceuticals, and make up the most heavy duty part of the intellectual property universe. An application for a patent typically takes five years and will cost you thousands of pounds.
It is important to note that the UK government allows more than one protection to apply to a single asset, as shown in this example.
Part(s) of product
Form of intellectual property protection
Name and logo
Registered design / Design right
Artwork and copy
Having all of the above in place for your product would give it the maximum amount of legal protection.
Working out the value of your intellectual property
For your application to be a success, you will need an accurate idea of the value that your intellectual property could bring to your company. This is often easier said than done, as you have to try and take a long-term view. For example, is it worth spending a lot of money patenting a product that is only likely to be cutting edge for a year?
There are three methods for calculating an estimated value of your intellectual property:
- The cost method – based on the costs you incurred while developing your asset
- The market value method – based on the performance of similar assets in the market place
- The income or economic benefit method – based on the money the asset might make for your business
Using two or more methods in combination is the best way to arrive at a good estimation of your asset’s true value.
Preparing for your patent application
Valuing your asset is only one part of preparing for your patent application. It’s good practice to appoint a professional patent attorney to support you in the process.
Remember that your product is not protected by a patent until you receive your approval letter. This means you’ll need to take extra care that your concepts are not copied in the meantime. Avoid letting too many people examine your product in detail before your patent is approved. In particular, be wary of would-be investors who ask for in-depth product information before committing to a partnership with you. It’s possible that they are simply fishing for information that they can share with a competitor. If you do need to share information, then be sure to put a non-disclosure agreement (NDA) in place.
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