The basics of intellectual property [part one]
Ludwig Lindermayer is a patent and trademark attorney at PAUSTIAN & PARTNER. In a series of thought leadership pieces, he outlines the basics of intellectual property and how best to protect them as a startup.
The common perception is this: intellectual property (IP) is something that costs tonnes of money and nobody really understands it. The process can seem particularly cumbersome in an environment where someone or a group of people have a great idea for a business and are working hard to get it off the ground and flying. In this situation almost everything is new and exciting, working hours are long and most of the time, one has to prioritise tasks to at least get some sleep. And then there is this incomprehensive monster lurking in the shadow, everybody knows it is somehow important – at least others say so – IP. Many realise that it is an important aspect of their business, but so many end up pushing it back until it becomes absolutely necessary to deal with.
But is IP really that horrible? Why do some get lost in the IP-rabbit hole?
IP is essentially a toolbox for the success of your company, nothing more and nothing less.
It is important to always consider your IP as a tool and not as an end in itself. A granted patent will not help you at all if you do not use it. If you simply want to hang something on your wall, I recommend pictures of family and friends and not patent and trademark certificates.
All IP-rights are based on the same fundamental principle: To provide you with a certain monopoly. Or put differently, to prevent, or rather make it illegal for others to do what you do.
This monopoly is, among others, dependent on the specific tool and the area in which this tool is valid. But in the end, the main goal is to create an IP-portfolio tailored to your business that provides you as much of a monopoly as possible: your own individual toolbox.
So what are the tools? They may vary from country to country but essentially it is these “mighty three”:
Technical IP rights
These are among the most prominent of the technical IP rights, the patent. Some places follow a utility model, with its own set of rules, which are just as mighty as the standard patent.
These two protect technical features of your invention/product for a certain time. Not the shape or colour – unless they are needed for a technical effect. They protect technical features from a flying taxi to software, including artificial intelligence.
An often-underestimated tool, trademarks are mighty in their own right, they protect your brand – your identity. They protect the emotions that determine why people decide to buy your product/service. As such, they can be anything from words to logos and even jingles, colours and places you put your name or logo. The best thing about them is that they are relatively cheap and quick to have and can be very long-lasting with good care. Moreover, they are usually easy to enforce.
Designs protect the look of your product independent of its technical features, almost the opposite of a patent. Whenever you put effort into the aesthetic design of your product to achieve a certain look, consider checking if it is eligible for design protection.
These three are just a few types of IP rights, there are others among them for example, the copyright. This is essentially an IP right that is created and sometimes can be registered every time you create something. This could be literature, the looks of a vase or software. However, the copyright is one IP right that really does its best not to fit into a black and white picture. It strongly varies from jurisdiction to jurisdiction.
Each one of the "mighty three" defines a piece of your monopoly and defines what you can forbid others from doing. You also can sell and buy them, licence them, even use them as a sort of currency in special situations and it might make your company more interesting for investors.
But before you can even think of doing these things, you have to register your IP rights. Get them and then use them. If somebody infringes your IP right and you do not take action, nobody else will. Sometimes it is enough to let the world know that you have a certain IP right and sometimes somebody needs a slap on the wrist with it. But you have to use your toolbox or the money getting it was spent in vain – your tools get rusty.
One of the basic principles of IP is, if you (intend to) earn your money with it, it is probably worth protecting.
In the next part of this series we'll tackle the first of the "mighty three": technical IP rights.