The Waterfront Partnership

Protecting Your Innovations

Protecting Your Innovations - The Facts on Patents and Design Rights

(This article featured in the Spring 2006 issue of Practical Farm Ideas, Volume 15 Issue 1)

Mike brought to our attention, here at the Waterfront Partnership, what a great selection of innovative ideas you the readers and contributors have to Practical Farm Ideas magazine.  We were inspired and wanted to contribute some information which you may (or may not!) find useful.

New inventions can be protectable at law by various means some of which can be very costly and others relatively cheap.  The area of law under which the protection falls is known as intellectual property law but we will try not to get too bogged down in the specifics of the legals.

We thought the best way to give you some indication of the rights potentially available would be to do so in relation to a couple of the inventions which have already featured in the magazine.

Patents

Log-Handler (p. 38 Volume 14, Issue 4) This invention was drawn to our attention as an example of something which is completely new.  If this is the case, if there is nothing else which exists (or which has been fully described in print) the same as this then it may have been possible to obtain a patent on the log-handler.  In order to do so there would have to have been no information available describing the machine or any other similar prototypes made anywhere in the world!

In order to be patentable an invention must be new (as above) - so for example though the mud-guards on the Landrover (at p.18 of the same issue) are resourceful and innovative the fact that mud guards are used on other vehicles and bikes means that this is unlikely to be considered ‘new'.  The invention must also involve an inventive step, so even if the mud-guards were ‘new'  if previously mud-guards only existed on bicycles previously it is unlikely that would be considered ‘inventive' to simply place the same concept on another vehicle.

If the invention is both new and inventive, it then has to be capable of industrial application. Since this is the purpose of your inventions - this hurdle should not present you with a difficult obstacle!

The downside to patenting is the cost.  You will require a patent attorney to draft a patent specification for you.  There is an annual fee for renewing a patent and extensive additional costs if you want the patent to be effective around the major markets in the world (Europe/USA/Japan).  Further, whilst the costs of obtaining a patent are likely to be in the thousands rather than the tens of thousands if you ever need to commence litigation for patent infringement this can cost millions!  Although there is now a patent county court and a streamlined procedure which is available to attempt to keep costs of a patent action down.  For the most part, if you wish to patent your invention you should think about getting a company perhaps a manufacturer to take an exclusive licence to your invention which means that no-one else could exploit, but before you talk to anyone about your invention you should ensure that a confidentiality agreement is in place - to keep the idea a secret, otherwise you may destroy novelty in your own idea which is not the outcome you want.

Design Rights

Bearing in mind the often prohibitive cost of patenting an invention protecting your ideas by Design Rights might be a more practical way for you to proceed.

You can obtain protection of a design through Unregistered Design Rights or Registered Designs (in the UK or throughout the European Community).

Unregistered design rights are useful because they arise automatically, at the time you first create your design drawing or make the prototype of your innovation.  These rights apply to designs which are original (i.e. not copied from elsewhere) and not ‘commonplace'.  These rights and can relate to any part of the article designed or to the whole article itself.  There are one or two exceptions as to what can be protected and one such exception is ‘surface decoration'.  However, neither the log-handler nor the mud-guards have any aspect which could be described as ‘surface decoration'.  So, if either design were not considered to be commonplace then they may well qualify for unregistered design rights. 

Unregistered design rights last for fifteen years from the end of the year the design was first made (either written in a document or made as a prototype) or if the products made to the design are either sold or hired, ten years from the end of the year in which that occurs, whichever is the shorter.

The downside to unregistered design rights is that they can only seek to prevent your idea being copied by another.  There is no protection if somebody else independently comes up with the same design! 

This contrasts directly, with Registered Designs where once your design has been registered you have a monopoly right over it.  This means that no-one else can make an article to the same design as yours (in the UK or the European Community if you have sought community wide protection) without infringing your rights, regardless of whether or not they were aware that they existed.  Protection for registered rights extends to the shape, configuration, pattern of the design so it is wider in its scope of protection than Unregistered design rights but it does exclude from registering features of the shape of an article which are dictated solely by the function which the article has to perform.

This may be a bit of a stumbling block for some of the ideas in Practical Farm Ideas since they are often primarily function based and both the examples referred to herein are not likely to be registrable for this reason.

What can you do with these rights anyway?

With all of these rights, whether for patents or designs they will be your property (either at registration for patents and registered designs, or at creation for unregistered designs).  These property rights are yours to sell, lease or hire (by way of a licence) to another individual for value.

If you discover another person is infringing any of your rights then you can look to sue them for such infringement, ideally in the hope that they will settle and pay you appropriate monies (rather than incurring unnecessary court and legal costs).

If you did need to sue anyone for infringing activities you could seek to stop them from the continuing to undertake those activities, to claim damages and/or account of profits for what they have done and to recover a significant portion of your legal costs.

This is of course an extremely short overview of both patents and designs rights and more to give you a ‘flavour' of what is available.  It does not constitute legal advice and should not be relied upon as such. 

Juliet Nutland and Rachel Bunn

The Waterfront Partnership

 

© The Waterfront Partnership 2006