Navigating intellectual property protection

7 Jun 2010

Dr Thomas Cooney, director of the DIT Institute of Minority Entrepreneurship, provides an overview of the various types of intellectual property (IP) and the benefits of protecting your creations.

The view of most entrepreneurs is that IP is of little relevance to them as they have no new ideas, it is very expensive and it is very complicated. But these perceptions are not as true as people would have you believe.

Indeed, I would urge all businesspeople to visit the Irish Patents Office website where they can learn about how IP can benefit their business. Much of the information in this article is taken from that website and is used to introduce you to the main types of IP concerned.

Definition of IP

IP is the term given to any creation of the human mind which might have some value in the market place. These creations can include an idea, an invention, a unique name, a business method, or an industrial process.

There are many benefits in protecting these creations through IP and these include generating additional income either from sales or from royalties (if licensed), qualifying for tax relief, and securing exclusive rights to use the creation. To protect your IP, you can use one of four main approaches – patents, trademarks, design and copyright.

What is a patent?

A ‘patent’ gives its holder, for a limited period, the right to exclude others from exploiting (making, using, selling, importing) the patented invention, except with the consent of the owner of the patent. A patent is a form of ‘industrial property’, which can be assigned, transferred, licensed or used by the owner, but patents are territorial and so an Irish patent is only valid in Ireland.

Irish patents have a maximum lifespan of 20 years, although Ireland also offers a “short-term” patent which is valid for a maximum of 10 years. To maintain a patent in force, annual renewal fees must be paid each year from the third year.

Patenting costs can vary substantially. Factors such as the type of patent desired (eg, a short-term patent or a full-term patent) and whether protection in Ireland or abroad is sought, are relevant. There can be other statutory fees payable depending on such factors as the need to amend applications or extensions of time requirements.

In addition, annual patent renewal fees must be paid from the third year in order to keep a patent in force. On top of the statutory fees charged by national patent offices, applicants will need to bear in mind the costs of hiring the services of patent agents, which again can vary depending on the extent of the advice and assistance sought.

What is a trade mark?

A ‘trade mark’ is the means by which a business identifies its goods or services and distinguishes them from the goods and services supplied by other businesses. The Trade Marks Act, 1996 defines a trade mark as “any sign capable of being represented graphically which is capable of distinguishing the goods or services of one undertaking from those of other undertakings”.

A trade mark may consist of words (including personal names), designs, logos, letters, numerals or the shape of goods or of their packaging, or of other signs or indications that are capable of distinguishing the goods or services of one undertaking from those of others.

’Design’ means the appearance of the whole or a part of a product resulting from the features of the lines, contours, colour, shape, texture or materials of the product. A registered design is a form of ‘industrial property’, which can be assigned, transferred, licensed or used by the owner. Design protection is territorial and so a design registered in Ireland is only valid in Ireland.

What does copyright apply to?

‘Copyright’ is the legal term, which describes the rights given to the authors/creators of certain categories of work. Copyright protection extends to the following works:

  • – original literary, dramatic, musical or artistic works
  • – sound recordings, films
  • – broadcasts, cable programmes
  • – the typographical arrangement of published editions
  • – computer programmes
  • – original databases.

The owner of copyright is the author, meaning the person who creates the work. Where an employee in the course of employment creates the work, the employer is the owner of the copyright in the work, unless an agreement to the contrary exists.

Copyright takes effect as soon as the work is put on paper, film, or other fixed medium such as CD-ROM, DVD, internet, etc. No protection is provided for ideas while the ideas are in a person’s mind; copyright law protects the form of expression of ideas, not the ideas themselves.

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Photo: Dr Thomas Cooney, director of the DIT Institute of Minority Entrepreneurship