If you’ve read our introductory guide to intellectual property or you’re familiar with patents already, you’ll know that a patent is a licence that gives inventors full creation rights to their inventions.
Anyone can be an inventor for patent purposes – many businesses and the individuals working within or for them are. Indeed, sometimes, patentable inventions go unrecognised, simply because on a day-to-day basis, few amongst us think like patent experts and spot where the opportunity to patent an item or a particular method of working or process could be protected, to our exclusive benefit – and potentially also to our rapid market growth and financial gain.
What is a patent?
Patent rights are pretty special. They can be attached to:
• an item, like a piece of equipment (e.g. a manufacturing or engineering component or technological code), or a product (think e.g. Dyson vacuum cleaners, fold-up bicycles or medical equipment and medicines) or
• a process, like a production technique, cosmetic treatment or method of processing data, for example.
Patents are essentially designed to encouraged innovation and inventions and to fairly reward those who spend the time, effort and money getting something special and very unique to market, by giving them a period of exclusivity where nobody else can free-ride on their success. If there was no period of protection for the inventors of these new items or processes, then fewer would-be inventors would consider it worth their while, financially or otherwise, to start creating.
Why could it be important get a patent?
Patents grant an exclusive right to the patent owner to prevent anyone else from creating or using something identical or very similar to the item or process that has been patented.
Let’s say that you’ve come up with a new product…the likes of which has never been seen before. Even if you keep the idea quiet until it’s been through production and is sitting on shop shelves, nothing is stopping someone noticing your product on the market, figuring out how it’s made, and making a copy to sell for themselves in competition to you.
A patent publicly evidences your monopoly right to prevent anyone else from copying you and free-riding on your creativity and investment in getting this far. It provides you with a legal right to enforce your exclusive ownership of this item or process and to force any copycats to stop.
Patents can have tremendous financial worth. They block others from directly competing with you – meaning that if your patent is a success, you have a very significant sales advantage over your rivals.
Investors often favour businesses who have something unique and heavily protected within their business model. These businesses may well demonstrate higher and more rapid growth potential, they may be new market-creators, not just market leaders and they may be able to license their technology to others, for additional financial gain.
All of which is good news for the business, and good news for those interested in investing in it and who are looking for solid prospects for their return on investment.
When might you not want to protect your patent?
Not everybody with a patentable item or process does in fact apply for the protection...and there may indeed be occasions where this may be the most sensible decision.
The biggest motivation for not doing so is to prevent trade secrets and potentially wider creative thinking or plans from being published (or hinted at) to the wider world. Because when a patent is granted, all the detailed elements of that item or process are published. Your invention, in all its glory, is now transparent and capable of scrutiny by the whole world.
So you might have gained a monopoly right to use it and to prevent others from doing the same, but the cost of that is the loss of secrecy. If your patented item or process is just the first step in a series of business activities that you are planning, you might not want to risk making that first step too obvious or easy to engineer by publishing everything about it.
The challenge in these circumstances, is how you can still keep your vital trade secrets and ‘know-how’ from leaking out to others over time and how you can successfully take action against anyone who does put those trade secrets at risk. Patent protection provides a clear and absolute right that is capable of rapid enforcement action and helps to mitigate damage. Without that protection, protecting your IP, evidencing your rights and taking enforcement action in defence of them, can be a trickier, less certain and more cumbersome exercise.
Employees, ex-employees, suppliers and contractors are just a few potential areas of risk when it comes to protecting trade secrets. Workplace and cyber-security are others. Make sure that you are doing all that is reasonable to protect your business, for example, by:
1. Putting all workers and business partners under strict confidentiality obligations in your contracts with them and restrictive covenants for when they may leave/contracts end
2. Using non-disclosure agreements (NDAs) at the start of any pre-contract conversations and meetings
3. Ensuring your online and work environments are secure and that all confidential materials are kept locked away and safely stored
4. Training staff to never share passwords to secure business applications or information areas and to properly lock and keep safe any mobile technology
5. Getting good business insurance in place, including, ideally, legal expense insurance
For more practical guidance on how to protect your trade secrets, take a look at our guide: Confidentiality: are you keeping your IP and data safe? You can find the right protections already built into your NDA templates, employment and trading contracts and terms.
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