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You wake up on a fine morning with a sudden gush of euphoria. The night rest has given your brain a good squeeze with the creative juice going free-flow. The ideas are all formulating and you can already envision how this will be extremely beneficial for your business or your new start-up. Deep down you know that this sheer brilliance will be the right base and subsequent cherry topping to catapult into a victorious venture thus making it even more exhilarating. So what’s next? Rightfully you will be running out with enthusiasm and shouting at the top of your lungs with the words ‘EUREKA, EUREKA’; calling up friends and barging into that swanky café and spilling them the details of your recently discovered innovative idea. Sounds logical? Indeed it is but before doing so, take a breather and apply those brakes as you may very well wants to protect that idea or intellectual property (IP) of yours legally.
Just as the name goes by, IP is the creation that spills out of your mind. It comes through many rudimentary intangible forms ranging from written expressions, symbols, drawings, paintings and music among others. This valuable property created with the power of your mind is undeniably distinctive and certainly benefitting at the economical front thus substantiating the degree of importance in protecting it for the success of your businesses, especially small and medium businesses. Yes you read it right – the success of your business does not solely depend on extensive marketing and promotion but it also extends into acquiring IP rights for products, services and designs before ‘public appearance’. Why you may ask. Well to simply put, it will be devastating to know that your idea has been snatched by someone else, let it be friends or foe, beating you to the punch. Now wouldn’t that be criminally catastrophic?
IP AND ITS RELEVANCE TO THE SME
If you look at a more microscopic level, every small and medium enterprise (SME) regularly uses and creates a great deal of IP on a day-to-day basis. Regardless to the nature of the business, whether it makes products or provides services, every SME has an IP to protect. Most of these entities own business information that is both valuable and classified. From database of clients, proposals, business plans and sales tactics – all worthy of protection.
Call it a dog-eat-dog world but the fact is that competition is visible amongst the SMEs – especially given the current gloomy economic climate. IP does not just give a fashionable sparkle to your products and services but it also assist in almost every aspect of your business development, sustainability and competitive strategy. It spread across marketing strategy, product design and development, sales pitch and exporting as well as expanding your business outside of your home shores, be it through licensing or franchising. In such context, SMEs should acquire IP rights and also consider how best to use it to its own benefit.
WHAT GOES INTO THE IP POT?
There are different IP entities involving separate and different set of laws, mixed into a seductive mirage and fashionably tossed into a pot labeled as IP. Each unit has its very own attributes which functions distinctively from the rest. Bearing that in mind, dissecting the generic term found in IP with precision and further branching it out is crucial if not vital. It has often been said by many professionals and academicians alike that there are many branches stemming out of the IP tree and possibly there will be more to come. However in a more common context, there are four basic types of IP which is essential to any SMEs.
START PATENT-TING UP
As opposed to the ‘vague’ term of IP, patent is far more specific and defining. Common knowledge will tell you that it’s highly impossible to protect an idea simply because it comes in a metaphysical aspect. But if you turn the idea into a tangible form, you can acquire a patent to protect it because it is your property. This works very well in protecting any form of invention as it falls under the continuum of IP. However of late, abstract concept such as computer software or business processes, technology, and designs can also be patented provided if it is new and original (novel), useful and non-obvious especially to someone with technical expertise in the field of the invention.
The effect of a patent is very much similar to an air-tight container. Vacuum-sealed protection if you must. It gives the inventor of the purported product the exclusive rights of ownership to fully exploit the invention to commercial purpose. A patent also stops ‘thieves’ from making, using and commercially exploiting the invention during the course of prescribed years – usually the validity of the patent until it expires.
For some SMEs, the nature of their business revolves around the creation of inventions on a continuous basis hence it is important to draw a crystal clear understanding as to who can claim ownership of the inventions. It is equally crucial to know if your business owns the inventions or the employees who created them owns them. This boils down to the agreement between you as a business owner and your employees. A wise advice is to make sure your employees sign on the dotted line stating that any invention created by them during their course of employment belongs to your business.
WHAT YOU NEED TO KNOW FOR PATENTS
- There are three kinds of patents namely a utility patent, design patent and a provisional patent.
- A utility patent is the most common and basic patent which envelops the formula and method of an invention whilst a design patent protects the look of the patent – right down to the fine details. A provisional patent protects your invention while buying you some time to file for a regular patent application, which has proven to be beneficial to independent inventors who are often hesitant in showing their ‘pride and joy’ to potential manufactures for the fear that their brainchild would be stolen.
- Laws across the globe vary when it comes to patents. In other words, it is filed per country basis. If your invention is protected by the patent laws in your country of residence, it does not mean it is protected in other countries. Most patents granted are valid for about 15 to 20 years with extension prior to renewal, however once again it varies from country to country as patents are non-renewable in some countries.
- You need to go to arm’s length to prove that your invention is truly new and not just some blatant compilation of previously invented processes or some attempted ‘modification’ on an earlier invention.
- A patent will not be granted should there be an absence of demonstrated ingenuity on the part of the inventor or if the invention has no proven utility
IT’S YOUR RIGHT TO COPYRIGHT
You may not able to file a patent for your precious idea or ideas; however you can ease off that frustration as you can file for a copyright to safeguard the specific form in which your ideas are recorded. Works well in protecting original works of authorship fixed in any tangible medium of expression. This includes literary, musical and dramatic works as well as pictorial, audio and visual recordings and sculptural works. Once the expressive idea comes to fruition in one of the above mentioned forms, the owner can and should begin using the copyright symbol with immediate effect. Such exemplifies an act of letting others know that you as an author intend to exercise full control over your work, which includes selling or licensing your work.
Just like patents, copyrights too carry a ‘shelf-life’. Generally a copyright lasts as long as the creator’s life with an addition of 70 years into it. Copyrights for business are slightly different as they can run for about 100 years or so from the advent of creation. Once again this is a territorial scope hence it varies from country to country.
WHAT ABOUT TRADEMARKS?
Coming up with a unique yet catchy name or slogan for your business or products is no walk in the park on a sunny afternoon. With a catchy name you are bound to attract attention including those who would want to nick that copywriting and use it for the benefit of their business. So what will the solution be to keep such circumstances at bay? The answer is to trademark it.
A trademark shields the name of your business and products, symbols or logos and even slogans from the hands of other businesses from doing something similar under the same name. Trademarks are also pictures and designs in which you may use to promote your business while still providing a unique method of identification. Having something unique and distinctively identifiable is extremely beneficial for your business and bearing that in mind a trademark enforces the uniqueness while protecting consumers from confusion and deception. Did you just say that your business sell services? Well not to worry as a service mark can be used as opposed to a trademark with the same effect.
TRADE SECRETS ARE SERIOUS BUSINESS
There is no denial that businesses are at a constant war every day. Competition heats up and information is often leaked out causing disruption to your detriment but to the benefit of your competitors. When you want to protect vital information in assuring that your business maintains that competitive edge over your competitors, you use trade secret to protect it thus maintaining confidentially.
Think of finger licking good and the 11 secret herbs and spices and you will know we are talking about Colonel Sanders and his world famous Kentucky Fried Chicken (KFC). KFC’s delicious platter has monopolized the fried chicken market worldwide with many trying to imitate that aromatic yet succulent piece of chicken coated with its signature secret ingredients. Tried they did yet no one can create the same dish especially if former staff of KFC pulled up their sleeves but none has ever tried and may be afraid to do so.
The reason to this is simply trade secret. Employees of KFC are asked to sign an agreement to not reveal the secret ingredients and should it be revealed, the repercussions are grave. The same is widely practiced by many businesses who would want to protect the feel and texture in a body lotion or that ingredient which creates an enticing fragrant in a perfume or even a shade in a hair color.
KNOW YOUR IP TYPE? NOW PROTECT IT!
Ok let’s not just depend solely on those legal methods shall we? You don’t have to totally ignore the legal procedure where protecting your IP rights are concerned but you can also take measure in your own hands. Protecting your IP rights is more than identifying what type of IP you are filing for and getting a lawyer to file it. And speaking of lawyers, you need to find for a qualified and experienced lawyer with IP protection as their forte. The costs incurred may be relatively high but it is still worth every dime spent, especially since you don’t want to lose exclusive rights for your products, designs and services.
SECURE & BACK IT UP
First things first, get yourself a hard drive. You don’t need anything fancy but the basic, inexpensive, adaptable and large storage USB drives which can store almost anything and everything. Don’t store anything valuable in your basic computer as it can be easily access by the criminal minds of hackers, envious minds of your competitors or even the innocent minds of a purely inquisitive person. Your files and data can then be modified or tampered by others and worse still, printable. You have the risk of losing all rights to this file since the printed version is out for anyone thus making it their property; unless you have legally secured IP protection for it.
To further protect your files from being stolen and tampered, avoid saving your files in word document and set up a PDF file in your separate drive. A PDF file is a secure program which gives you the authority to set up password and allow who can view your confidential files. This enables you to create, modify, edit and store your work safely while prohibiting unauthorized viewing, copying, editing and printing. Once that is done, back up your files. Let it be drafts, plans, thoughts or proposals; at the end of each day, back up your work progress and store it in a safe place. Make this a regular practice in safeguarding your interest and most importantly your work.
KEEP TRACK
At times you may want to put forward a solid argument, firmly and sternly saying that the idea is yours. Especially in times of litigation, it’s crucial for you to prove the evolution of your idea as it gives you a much stronger and substantiated case. Start documenting your work in a bound book or a secured program file. Keep all documentations which illustrate the growth of your idea, with each sketch and minor changes, dating everything and anything which has created a complete picture of the development of your work.
Your extensive record tracking does not stop there. If you carelessly mentioned your idea to someone or even mentioning it to potential financiers, manufacturers or partners, chances of you obtaining IP protection will be hard. So what happens next? What you do is to record to whom you have discussed your ideas with and also be sure to check the rules governing IP application in your country and see if you can ask the person to sign a non-disclosure agreement (NDA) before discussing your ideas. You can also ask the person to sign in your ‘track-record book’ and the date page in your book providing you the perfect ammunition in an event of your work and ideas are copied.
You can also document phone conversations, IP applications and brainstorming sessions just to be more on the safe side. You should however be cautious as some companies may want you to sign a waiver requiring you to give up your exclusive rights over your work when you present any sort of confidential information to them.
RESEARCH, RESEARCH & MORE RESEARCH
You may think that your work, idea or creation is the very first and the only one around. However it’s not what you think but it’s what you know. You would not know if there are other products out there in the market which is similar to yours or with uncanny resemblance.
The idea here is to ensure that your product is novel and it does not violate the IP rights of others. Start searching extensively on products and services that is similar to your idea. Seek professional assistance from a well experience IP lawyer or companies specialising in patent search if you must. You can also document this into your ‘track-record book’ for reference. Remember, the purpose is to see if your product or service idea is indeed novel, marketable and most importantly, does not infringe on the IP rights owned by others.
WHY SHOULD SMES PROTECT THEIR IP RIGHTS?
The answer is straight and simple – the law requires it. There have been many cases where SMEs lost all exclusivity of their IP rights simply because they were not aware of such rights. Even when they are aware of the existence of such rights, they are ignorant to an extend assuming that IP rights are only for new products. What they failed to realise is, IP rights can be filed for any modification made to the products or services which can make an astounding commercial impact. If you as an SME fail to protect your IP and if your product or services is a commercial hit, then in an event where your competitors copy your idea, you can only compete in pricing.
SMEs should also not allow cost to be factor which stops them from filing for IP rights. They tend to feel that their product or service may not be that valuable to be registered for IP rights and its costly and time consuming given the period involved in filing for such rights. What they don’t know is that the cost is not at all exorbitant if one is to compare the long-term protection granted to their IP. In most countries, the cost is payable over a period of time and there are government grants and funds to finance the filing for such rights.
Apart from that, once you have secured the IP rights for your product, it not only stops your product and service from being copied by others but it also enables you as an SME to sell your product and service at a premium price. What more, you can further re-invest into further research and development for better product and service.
Are you still finding for excuses to not file for an IP protection? If yes then just channel it into finding excuses in filing for an IP protection. It does not just give you the exclusive rights but it also provides more value to your business. After all, SMEs are the driving force of the country’s economy.
QUICK TIPS ON PROTECTING YOUR IP
- Safeguard your invention and idea; file for protection
- Identify which category of IP is relevant in filing for protection
- Invest in a well experienced small business or IP lawyer
- Bone up on IP rights by reading more about it. Remember knowledge is key
- Don’t be too convincing because your idea has been protected it will be successful. Your idea is ‘protected’ should it be a hit
- Respect is essential. Don’t infringe on the IP rights of others even though you have protected your own
- Develop your idea fully before making it known. A well researched idea with trademark, copyright or a pending patent attracts investors like bees to honey
- Non-disclosure agreements are your bible. Protect your trade secrets by asking those whom you will be discussing your ideas with to sign on the dotted line
- Patience is a virtue. Obtaining IP rights takes time but the end result is worth the wait.
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