How to safeguard your success

When does a bright idea for your business become worth safeguarding? Small businesses are getting smart in protecting their intellectual property.

He’s one of Britain’s best-known inventors and entrepreneurs but James Dyson – he of the eponymous vacuum – has been at the sharp end of knowing just how hard it is as a cash-strapped start-up or small businesses to find the money to protect your intellectual property, but also how important it is to do so.

His Dual Cyclone famously nearly never got off the drawing board because of the cost of patenting and, more importantly, renewing the patents behind his technology, with patent costs, he has since admitted, nearly bankrupting him in the early years.

Then, in 1999, Hoover tried to imitate the Dyson and he was forced to go to court to protect his invention, finally winning an estimated $5m in damages in a landmark battle.

So what does all this mean for your business? Where does a bright idea stop and protecting your intellectual property – or IP – begin?

Many small businesses thrive on their wits and innovative ideas. Your intellectual property will often be one of your key advantages and having it ripped off, copied or counterfeited can be devastating. The good news for small business is that the coalition government appears aware of some of the barriers to IP protection for many small businesses, setting up a consultation last November into how IP protection could work better to promote growth and enterprise.

This recommended, among other things, that the accessibility of the IP protection system be improved for small companies. While the government’s response is still pending, here are Business Sense’s first steps to protecting your IP.

Take out a patent

Yes it will cost, with the UK Intellectual Property Office (www.ipo.gov.uk), which is the UK body that grants patents (and should therefore be one of your first ports of call for IP advice), estimating a UK patent application will cost between £230 and £280.

But that’s only the start of it: the initial patent only lasts five years, after which you need to renew it each year (for a maximum of 20 years), with the cost rising annually from £70 in year five to £600 in year 20. What a patent will give you is the legal right to stop others copying, manufacturing, selling and importing your invention without your permission. However you should also bear in mind a typical patent takes two to three years to grant (although the procedure can sometimes be accelerated) and a patent cannot be granted if your invention is already public.

Along with the IPO, getting some specialist legal advice may be a good idea, with the Chartered Institute of Patent Attorneys (www.cipa.org.uk) a good first step.

Look into trade marking

There are many other forms of IP beyond patenting, and it may be that your invention or IP is either not appropriate or eligible for patent protection (again the IPO and specialist legal advice will be able to help on this). One common option is the use of a trade mark to distinguish your goods and services from those of your competitors. This may be protecting a specific word, logo or a combination of both. Again the only way to register a trade mark is through the IPO. A trade mark application will cost from £170, with an extra £50 payable per additional class or category, with trade marks generally split between goods (such as a product, preparation or piece of equipment) and services (for example a specific sector or type of activity).

Copyrighting and design rights

Copyrighting protects written, theatrical, musical and artistic works as well as film, book layouts, sound recordings and broadcasts.

The good news is that copyright is an automatic right, which means you don’t have to apply for it, and it is also effective outside the UK. The bad news is that copyright does not protect ideas, so it only comes into play when something is fixed (for example down in writing). Design rights can offer automatic protection for the internal or external shape or configuration of an original design, but do not give protection for any two-dimensional aspects, such as patterns, although these can be protected by copyright or registered design protection.

Design rights last either 10 years after the first marketing of the product or 15 years after creation of the design, whichever is the earlier. For the first five years you can stop anyone from copying the design although for the rest of the time the design will be subject to what is known as a License of Right. This means anyone is entitled to a licence to make and sell products copying the design. Registered design protection gives you exclusive rights for the look and appearance of your product with, again, the IPO being a good first port of call.

Assess what other forms of protection might work

Other forms of protection may also be suitable for your invention, including Confidential Disclosure Agreements and Non-Disclosure Agreements, which can help ensure an invention is kept confidential until a patent is granted.

If you have created a new variety of plant or seed you may be able to protect it at the Plant Variety Rights Office and Seeds Division within the Department for Environment Food and Rural Affairs (Defra).

Finally, you can always simply decide to keep something a trade secret. The problem with this is that onus is on you, and simply having a trade secret will not in principle stop anyone else inventing the same process or product, whether independently or otherwise.

The law of confidentiality protects trade secrets but to keep trade secrets protected you must establish the information is confidential and ensure anyone you tell about it signs a Non-Disclosure Agreement (see above).

Don’t forget the international element

In an increasingly global corporate world: it is important to recognise that a UK patent is simply that it will not extend beyond our borders. Similarly, while copyright is international (see above), other forms of protection may not be. With patents specifically it is important to ensure, if you want global protection, you put in place patents that will cover you for this, though inevitably the process (and cost of renewals) will be much more expensive and time-consuming.

You may have little choice but to apply for a separate patent to cover each specific country (with in the US, for example, it needing to go through the US Patent and Trademark Office). But there may also be the option of making a single application under the European Patent Convention and/or the Patent Cooperation Treaty.

Again, specialist legal advice should be able to guide you but the World Intellectual Property Organization should also be able to help, as should the IPO with general advice even though the majority of its remit is UK only.