Why seek patent protection?
In this latest blog from IP experts Spruson and Ferguson, they ask is having a patent important to protect your product.
The winner of Dynamic Business’ recent book giveaway via Twitter asked the following question: “My brand is trademarked, my content is copyrighted, my product is unique in the market, do I need a patent?”
As a general comment, Intellectual Property Law is that branch of the law which protects the intangible property rights in a “product” of human intellect and creativity. In the absence of Intellectual Property (IP) rights protecting such a product, third parties are free to copy the product at will. Although this may at first blush appear to be unfair, to ensure competition in the marketplace it is vital that third parties be free to copy products that are not protected by IP rights so that consumers are able to purchase the product from the supplier offering the product at the best price.
Trade marks, copyright and patents are forms of IP rights that protect different types of intangible property. Those rights can be summarised as follows:
Trade Marks: A trade mark is a “sign” that is used to distinguish the goods or services of one person from those dealt with or provided from another person in the course of trade. Examples of trade marks are names, brands and slogans.
Copyright: Copyright protects unauthorised reproductions and public disseminations of an original work. Copyright protects the particular expression of an idea – not the idea itself. For example, copyright subsists in original artistic works such as technical drawings. An important limitation to note is that copyright can not be employed to prevent third parties from reverse engineering utilitarian products that are sold on a commercial scale. For example, a person may reproduce a ballpoint pen by reverse engineering a sample of the pen without infringing any copyright. However, it may be that the ballpoint pen is covered by some other IP right such as a patent (see below).
Patents: A patent is an exclusive right to exclude others for a limited period from commercially exploiting an invention within a specific jurisdiction. A patent may be granted for any invention (for example a device, a method or a process) that satisfies certain requirements.
Registered Design Rights: A registered design protects the overall appearance of a product resulting from one or more features of shape, configuration, pattern or ornamentation of the product.
Returning to the question posed above, the trade mark will protect the mark that is used to distinguish the product from other similar products in the market, while copyright will protect content such as advertising material and brochures. The product itself, although stated to be unique, is not protected by any IP rights. If a third party, for example, decides to copy the product it is permissible to reverse engineer the product. If the third party then proceeds to use its own trade mark and develop its own marketing material, it will not infringe any IP rights related to the product itself.
The short answer is “yes”, patent protection should no doubt be considered. Based on the facts stated in the question it appears that it may potentially no longer be possible to secure valid patent and/or registered design protection as the product appears already to be available in the market. We would, however, strongly suggest that professional advice be sought as soon as possible on the possibility of securing patent and/or registered design protection for the product or any possible improvement thereto.
André Meyer is an associate at Spruson & Ferguson Patent and Trade Mark Attorneys.