What is IP?
Most individuals and almost every business, large or small, will at some time own or use some intellectual property (IP), frequently without realising it.
In a recent survey by the UK Intellectual Property Office, 86% of small businesses said it’s important to know how to protect their intellectual property but were unsure about what exactly is IP.
So let’s make a start!
Intellectual property (IP) is the “property” in legal terms resulting from human, original creative activity. As a result, it is “intangible” until converted into some physical form.
IP includes any original creation, such as inventions, designs, literary and artistic works, technical drawings, specialist know-how, business good-will, as well as business names, logos, images, promotional material, websites etc.
Like “tangible” property, IP has intrinsic commercial value and so can be bought, sold, licensed, mortgaged etc. In fact the commercial value of IP can be enormous and may be the major business asset of many companies.
IP is usually encountered in the legal framework provided by almost all countries to protect it – IP rights. These rights include patents for inventions, trade marks for products and services, copyright for original literary and artistic works, designs (whether registered or not) for the shape or appearance of product, as well as plant breeder rights, computer chip layout rights, geographical indications etc. Ideas themselves cannot be protected.
IP rights are generally “exclusive” – they give the owner the right to stop others from doing certain acts, for a limited period.
In many organisations, Confidential Know-how and Trade Secrets may be the most valuable IP asset. They are often associated with key individuals and in most countries can only be protected by specific contractual secrecy undertakings. Ideas themselves cannot be protected.
Need more general information about IP? Try the IP Tutor developed by the Intellectual Property Office
- Copyright protects the original expression of ideas, not the ideas themselves.
- It exists automatically in original creative or artistic works (irrespective of artistic merit) and gives the owner the right to stop unauthorised copying.
- Deciding how long copyright lasts can be complicated and depends on the type of work; but in general:
Written, dramatic, musical and artistic works – copyright for 70 years after the author’s death
Sound and music recordings – copyright for 70 years from when it’s first published
Films – copyright for 70 years after the death of the director, screenplay author and composer
Broadcasts – copyright for 50 years from first broadcast
Layout of published editions of written, dramatic or musical works – copyright for 25 years from first publication
- No application is needed to secure copyright but it’s good practice to record the originality and date of creation of the work (e.g. by marking “© owner, date”) should you later need to prove ownership when enforcing copyright.
For more information about copyright consult the Intellectual Property Office website.
- Designs protect the external appearance and impact on the eye of articles against copying. They do not give any protection for technical aspects such as how the article is made or used which may be protected by patents. They include new patterns, ornaments and shapes applied to objects which can be produced commercially.
- To be officially registered, designs need to be original and distinctive. Protection from copying the design can then last for up to 25 years if renewal fees are paid. Artistic aspects of designs may also be protected by copyright.
- In the UK, the shape and configuration (how different parts of a design are arranged together) of an object are also protected automatically by a design right lasting for 10 years after it was first sold or 15 years after it was created, whichever is earliest. Design right can be used to stop someone copying your design but you will need to be able to prove ownership and the date when it was first created.
- Design registration makes taking legal action against infringement and copying more straightforward. Graphics, textiles, wallpaper and other 2-D designs are not covered by design right and must be registered for protection.
For more information about protecting designs consult the Intellectual Property Office website
- Patents provide legally enforceable rights granted by individual countries for a new invention. They give the owner the right to stop other people from making or using the invention for a limited period – typically 20 years from the date of applying for a patent. They don’t give any positive rights to carry out the invention since other patent rights owned by others may prevent this.
- In order to obtain a patent, a detailed description of the invention and how it can be made and operated must be supplied with the application. This description is openly published normally 18 months after the patent application is filed. It is most important not to disclose any details of an invention before a patent application is filed, except in confidence to a legal adviser. Otherwise the newness (novelty) of the invention will be destroyed and it cannot then be validly patented.
- Before granting a patent, most countries carry out an official examination of the application to check the newness, inventive nature and usefulness (in an industrial context) of the claimed invention and that sufficient technical information has been given. Patents can now be obtained in most countries of the world and in the main areas of technology from machines to medicine. The extent of patent protection is defined by the claims set out at the end of the document.
- In the UK and Europe, patents can only be obtained for inventions which may have some “industrial application” although “industrial” is widely interpreted. As a result, artistic works, mathematical models, plans, schemes and the like cannot themselves be patented although articles embodying them may be. In the UK and Europe it is not currently possible to patent methods of doing business or computer software as such, but machines and devices implementing such methods or software may be patentable.
- It is possible to obtain initial protection – “priority” – for an invention by filing a basic application for a patent in one country and then waiting for up to a year to decide whether the invention is of sufficient value to justify the cost of filing in other countries. These later filed applications are then entitled to claim the “priority” date of the first application for the original invention. This can be important in a competitive area where others may be filing patent applications for the same or similar inventions.
- To help simplify things, there are now procedures to apply for a patent in multiple countries with a single application under the Patent Co-operation Treaty, administered by the World IP Organisation (WIPO). But there is no such thing as a “world patent” and even the European Patent, at the moment still changes into a bundle of national patents once it is granted by the European Patent Office.
For more information about patents consult the Intellectual Property Office website
- A trade mark can be any distinctive mark such as a word, slogan, letter, number, sound, smell, shape, logo, picture, aspect of packaging or any combination of these. Trade marks are used to distinguish the goods and services of one trader from those of another. A registered trade mark gives the legal right to use, license or sell it within the country where it is registered for the goods and services for which it is registered.
- Trade marks do not need to be officially registered but registration makes it easier to prevent competitors from copying or damaging your own marks. The main requirements for registration are that the trade mark is distinctive for the products or services involved and that the trade mark is not the same or similar to an earlier trade mark for the relevant products or services.
- Registration of a business, company or domain name does not in itself give you any proprietary rights – only a trade mark can give you that kind of protection. The same word(s) may be registered by different people as business names and trade marks. But the registered trade mark owner can sue the business owner for infringing the trade mark if the business name owner uses the trade mark on goods or services similar to those covered by the trade mark registration.
- As with patents and design registrations, it is possible to obtain trade mark registration in more than one country based on a first filed application or registration using various international conventions.
- Registered trade marks are usually indicated by the super-script ® symbol and unregistered trade marks with the super-script letters ™.
- In the UK, a trade mark registration can continue in force indefinitely if it continues to be used and renewal fees are paid every 10 years.
- You may be able to stop someone using a similar trade mark to yours on their goods and services (known as ‘passing off’), even if you haven’t registered your trade mark. But to be successful you’ll need to show that the mark is yours, you’ve built up goodwill associated with the mark and that you’ve been harmed in some way by the other person’s use of the mark.
For more information about Trade Marks consult the Intellectual Property Office website
Other useful background material about IP:
Trade marks case study: Aardman Animation
Sean Clarke, Head of Aardman Rights, talks about how IP rights can protect the company’s creativity and reputation.
Patent case study: sugru
The company founder and investor talk about how a patent has helped them to grow their business and compete with much bigger businesses. And for those, who don’t know, sugru makes glue that can fix everything from shoes to dishwashers.
Registered design case study: Nicole Phillips England
The founder and owner of the company, Nicole Jelbert, discusses the importance of design protection for her business and why she registers her designs. Nicole Phillips England sell a range of country inspired textiles for the home.
Copyright case study: Writer Dan Tyte
Writer Dan Tyte talks about the importance of copyright for an author and how he relied on copyright to protect his debut novel.