Protecting your Invention

If you have invested time, money and effort into creating a unique invention, the last thing you want is someone copying it or dealing with it for their own gain and without any benefit to you.

With this in mind, it’s important to consider what intellectual property rights are appropriate in order to protect your idea, such as design rights, copyright, trade mark rights and patents.

All these options should be considered carefully, as failure to acquire these rights at the beginning of the process could limit or undermine you acquiring the same rights post publication of your idea to the public, which can ultimately have an impact on the level of monopoly you have over your idea and the value of your idea if you decide to sell it.

A patent is known as the ‘grandfather of intellectual rights’ and protection is available for most industrial applications, methods of doing or processing and mechanical devices. The system works by granting inventors an exclusive set of rights over their idea for a limited period of time, in exchange for detailed public disclosure of the invention. During this time it is illegal for anyone except the owner of the idea to make, sell, use or import the invention in the country that the patent was granted. As long as renewal fees are paid every year, a UK patent has a life of 20 years. After this time expires, the public is free to exploit the idea without any influence by the inventor.

If you decide not to apply for a patent and therefore not publish the invention, you may be able to maintain a certain level of protection by claiming that it is a trade secret under the law of confidential information. The key factors to consider when deciding which route to take include:

• The type of invention: If the invention is mechanical and going to be released to the public for sale, the invention will be disclosed and so the law of confidence will no longer afford the owner with any monopoly; in this scenario patent protection would be appropriate. If however the invention is a technique of making a chemical, upon release to the public for sale, the invention will still remain disclosed and confidential as the process of mixing is done behind closed doors, for example in a factory or plant.

• The costs associated in acquiring patent rights: Patent application and yearly maintenance costs are expensive, however the level of monopoly afforded is, whilst limited, for 20 years.  Patent rights are registered rights and this mean that in the case of an infringement, you stand a stronger chance of the court ordering that your invention was infringed. However, relying on the law of confidence, design rights or copyright protection is significantly cheaper, but you are not afforded the same level of protection.

• The adequacy of patent protection verses the law of confidence: This will depend on the type of people obliged to keep the idea confidential or secret and whether they are honest and can be trusted over extended periods of time.

The route to protecting your invention is not straightforward and patent protection is only one option amongst many that are available to you. If you have any questions in connection with protecting your idea, the associated costs, managing an existing portfolio of intellectual property rights, exploiting your rights through licensing or assigning the rights, enforcing your rights, tax implications and seeking third party legal expenses insurance, we recommend you seek advice from an intellectual property specialist. 

If you would like more information regarding Intellectual Property protection, contact Riyaz Jariwalla, on 01242 248426 or riyaz.jariwalla@bpe.co.uk.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.