As a time poor entrepreneur wearing multiple hats and getting on with running your business, you may not have considered one of your most valuable assets – your intellectual property. For many, these intangible ‘properties’ are actually worth more than their tangible assets, including cash, buildings, equipment and land.
Although much of the time invisible, IP protection is absolutely key to the future and value of your business. Our quick guide gives a brief overview of the most common types of IP, but for more assistance in practical protection, call our IP team.
What are the different types of IP?
Patents protect against unauthorised use and/or exploitation of an invention. To qualify for patent protection, the invention must be:
New (never having been disclosed or publicly used before);
Must not be an obvious development of existing or known technology; and
Must be capable of industrial application.
Discoveries, scientific theories, mathematical methods, computer programs and schemes, rules or methods of performing a mental act, playing a game or doing business are not patentable per se (although the law is developing flexibly in the case of computer programs that produce a novel technical effect).
As with most IP rights, patents are territorial in nature. Applications are made to either the UK or the European Patent Office and undergo an examination and possible opposition process before grant or rejection. It is also possible to file an international patent application, under the Patent Cooperation Treaty. UK and other European patents last 20 years from the filing date, provided that renewal fees are paid and it is not invalidated. A patent provides a monopoly defined by the “claims”. Independent creation is no defence to any infringement: the monopoly is total.
Copyright protects against unauthorised copying of the whole or substantial part of an original artistic, dramatic, literary and musical works (computer software being a type of literary work) or sound recordings, films, broadcasts and cable programmes.
No registration is required as the right arises automatically.
It lasts for the life of the author plus 70 years or, in the case of sound recordings, broadcasts and cable programmes, 50 years from the end of the calendar year in which they are made.
Copyright does not however provide a monopoly right: if a similar or identical work to the copyright is produced independently and without copying, it will not infringe the copyright work.
Database right exists independently of the copyright (if any) in a database and protects the compilation of information comprising the database and its unauthorised extraction or re-utilisation.
The right arises automatically, provided that there has been “.....a substantial investment in obtaining, verifying or presenting the contents of the database”. There have been some changes to the nature and extent of database rights in the UK following Brexit, so speak to a specialist to get the latest advice.
UK registered designs
This is a national monopoly right over designs of the whole or part of a product (including its packaging) relating to its shape, colour or texture, amongst other features. To be registerable, the design must be new and have “individual character” (leaving a different overall impression on an informed user).
It can last for up to 25 years from application.
Independent creation is not a defence to infringement.
UK design right
This is a right to prevent reproduction of designs. It covers the design of any aspect of the shape or configuration of the whole or any part of an article.
It does not cover surface decoration.
No registration is necessary.
It lasts for up to 15 years from creation.
There are strict qualification criteria for foreign nationals who wish to claim ownership of UK design rights.
These are related to copyright and there are three principal moral rights:
The right to be identified as author or director of the whole or substantial part of a work (“paternity right”). This right needs to be asserted within the work in order to be enforceable.
The right to object to derogatory treatment of the whole or any part of a work (“integrity right”).
The right not to have the whole or any part of a work falsely attributed to you (“false attribution”).
With the exception of the false attribution right, which lasts for 20 years after a person’s death, moral rights last for 70 years after the author or director’s death.
Trade marks include signs or “brands”, used by traders to differentiate their goods or services from those of others, serving as a badge of origin. The right can be registered or unregistered (protected in the UK under the common law action for passing off). The former gives a monopoly right to use the sign in relation to the goods or services for which it is registered. Depending on the likelihood of confusion or the repute of the mark, it also protects against use of similar signs in respect of similar, or even dissimilar, goods or services. Registrability is subject to the sign’s inherent distinctiveness, non-descriptiveness and any pre-existing rights of third parties. Registered trade marks can last indefinitely if properly maintained.
Although not a true IP right, it can arise from a contractual arrangement with an internet service provider. Domain names are generally registered in respect of names or brands or denote an internet “address”. This is merely a contractual arrangement with the relevant generic top level domain (gTLD) of Country-code top-level domain (ccTLD) registrar. It is not a right capable of ownership but can last indefinitely if renewed.
Again, this is not an intellectual property right as such. Know-how can be protected on the basis that it is confidential information or a trade secret (and such confidentiality needs to be preserved if such know-how is to become the subject of a successful patent application – see the first of the qualification requirements for patents above). Protection is usually established by contractually imposed obligations to prevent unauthorised misuse or disclosure by others. Rights can also be implied inequity in certain circumstances, but contracts make the position clearer.
Our team of IP experts can guide you through the whole protection process having indepth knowledge of a wide range of sectors including fintech, MedTech, scientific and healthcare, working with companies and entrepreneurs across the UK and globally.
Get In Contact
Ed works with clients from all sectors (particularly healthcare/life sciences, sport, technology, media and communications) on wide-ranging non-contentious contractual, IP, data protection and competition law issues.