What can my business protect?

Written by: Jonathan DeVile,Partner, D Young & Co LLP | Published:

In a situation in which the design or innovation within a product is something which provides a unique selling point or a product improvement, then the intellectual property in that product becomes very valuable to a company. In this article we want to look at what can be protected within an engineering product and how.

Some IP rights exist automatically such as copyright. If the product is a software program, for example , then copyright will exist in the source code produced by the author. Similarly, drawings of a product will attract copyright, which will exist automatically. However one of the key limitations of copyright is that you have to prove copying.

Not only do you need to prove that the copier had access to your product, but that they took a substantial part of the original, which can be a difficult test to meet. If the innovation that makes products sell is an idea or concept built around a combination of technical features, then copyright will not protect a product having those features unless there has been copying.

It will also not protect the innovation in that product if someone reproduces the same innovation or concept without copying the same expression of that innovation or concept. This is because copyright protects an author's original expression in a literary or artistic work rather than technical innovation.

One of the most powerful intellectual property rights is the patent. The patent is an absolute monopoly right. This is because a patent is infringed whether or not the infringer was aware of the patent. Furthermore, there does not have to be copying in the sense that the copier does not have had available the original article or indeed that anything embodying the invention has been made. This makes the patent extremely powerful for technical inventions.

The patent protects innovation with respect to the 'state of the art'. If you have ever seen a patent, you will notice that it is formed from different parts. It is composed of a front-page providing bibliographic details such as the inventor's names, the name of the patent owner or applicant and a short abstract. There is then usually a lengthy description written in some legal terms followed by a set of drawings.

However the most important part of the patent is the patent 'claims', which come between the end of the description and the drawings. This is the established legal practice in which the inventor stakes his claim (as in what he claims his intention to be) and then a list of features or steps defining the contribution made by the inventor to the state of the art.

One of the key areas of innovation for engineering businesses is to develop software programs, whether running on a PC, an application program, an embedded controller or signal processing algorithm running on a dedicated chip. There is a common misunderstanding amongst those who know a little that patents are not available for software.

This is not true. The European Patent Office (EPO) grants many hundreds of patents, which are based on innovation in some aspect of software. Only a very few patents are rejected for being based on software and this only because the claimed invention does not include an aspect of technology or the includes an aspect of known technology and the innovation relates to something non-technical.

One example where companies innovate and where the exclusion might apply is where an invention relates to a software-generated graphical user interface such as that produced by a set-top box. This was the subject of litigation between Virgin media and Gemstar for infringement of three patents to a graphical user interface for Virgin's set-top boxes brought by Gemstar.

The European patents related to the organisation of channels and data on a television screen. The patents were granted by the EPO, but subsequently held invalid by the High Court for the reason that the claimed invention related to the non-technical presentation of information that did not provide a technical effect.

The absence of technical features in the claims can make the job of the patent office difficult in terms of prior art, because a keyword search of prior art will be meaningless. On the other hand a search that does not identify relevant prior art can lead to a false conclusion that the claimed invention is new and has an inventive step.

By contrast, as soon as an invention includes some technical aspect that combines with a graphical user interface, then the exclusion should not apply. For example the 'slide to open' feature of a smartphone should be patentable, because the invention requires an interaction between the touch sensitive sensor and the smart phone's processor to detect conditions for unlocking the smartphone.

For more information please contact Jonathan DeVile, partner, D Young & Co LLP.
Tel: 020 7269 8550
Email: jdv@dyoung.com or go to the website : www.dyoung.com


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