How Do You Protect Your Invention?
The most important point to remember is to keep very quiet about your invention until you are ready to patent it - if, indeed, you ever are. If you tell others about your invention unconditionally, there is nothing to stop them from making use of it. Worse, the invention becomes part of the store of human knowledge which means that it is no longer new and hence no longer patentable.
If you need to discuss your invention with anyone else, ask that person or those persons to sign a confidentiality agreement first. Jane Lambert of NIPC has drafted one for inventors which you can view and download here. If anyone is reluctant to sign it, ask why not. He or she may have a very good reason. If he or she is a lawyer or patent or trade mark attorney, he or she will already be bound by a duty of confidence. Another reason may be that there is no need for either party to disclose confidential information and a confidentiality agreement simply adds an unnecessary complication.
If someone breaches his obligation of confidence you will have to apply for an interim injunction. Unless your confidentiality agreement contains an arbitration clause that enables the arbitrator to order a party to refrain from doing something you must apply to the court for an interim injunctions. That can cost anything up to £100,000 or even more. And you have to be prepared to bear the other side's costs if your application fails. Most businesses can contemplate that kind of expenditure only with specialist intellectual property insurance.
For many inventions a patent is difficult if not impossible to obtain. For many more it is unnecessary.
Inventions for which patents are difficult to obtain are those that fall within art 52 (2) of the European Patent Convention and the equivalent provisions of national law. They include programs for computers, schemes, rules and methods for performing mental acts, playing games or doing business.
Invention for which patents are unnecessary are those that are unlikely to justify the cost of patenting. It is not always easy to choose the optimum legal protection for an intellectual asset. The following exercise is a good rule of thumb:
(1) Choose the period for which you are planning the development of your business;
(2) Identify the revenue streams that you intend to develop;
(3) Anticipate the threats to those revenue streams;
(4) Consider counter-measure to those threats most of which will be commercial such as reducing your prices or developing new products or services;
(5) Assess all possible means of legal protection including patents, design rights and copyright and select the most cost-effective.
Whatever form of legal protection you choose, make sure that you have insurance or other means of funding enforcement proceedings.
There is a new profession known as intellectual property strategists who can help you choose the optimum legal protection your intellectual assets. Dragon IP Strategics, for instance, can provide assistance with the setting and/or implementation of an intellectual property strategy integrated with the client’s business strategy.
Patent and TM Attorneys
If you are sure that you need a patent or other registered right you may wish to consult a patent or trade mark attorney. Members of the NIPC alliance include Dragon IP Ltd., a firm of patent attorneys, and Verymark, a firm of trade mark attorneys. The Chartered Institute of Patent Attorneys keeps a searchable database of patent attorneys and the Institute of Trade Mark Attorneys a similar database of trade mark attorneys.