IPRs do not protect ideas but the expression of the idea.
Why are IPRs important?
We are increasingly hearing more about intellectual property rights. In todays knowledge based economy, returns on investment for knowledge are higher than returns on other factors of production. Intellectual property rights contribute to ensuring profitability from knowledge.
Coupled with this is the fact that in the digital, globalised era it is much easier to reproduce creations than ever before. A song, film or book in digital form can be transmitted globally and instantaneously via the internet. A machine created in Norway can be reverse engineered, perfectly reproduced and put on the market in another country with minimal effort. Ensuring that rights are in place provides a legal basis from which to protect against copying.
According to the FBI, Interpol, World Customs Organization and International Chamber of Commerce, roughly 7-8% of world trade every year is in counterfeit goods. That is the equivalent of as much as $512 billion in global lost sales. IP theft poses a risk to all industry sectors; those most commonly affected are manufacturing, consumer goods, technology, software, and biotechnology, including pharmaceuticals.
Is my intellectual property protected abroad?
Patents, Designs and Trademarks are only protected in the territories where they are specifically registered e.g. a patent registered in Norway will only protect you within Norway. If you are exporting or are considering exporting you should seriously consider protecting your IP in these markets which are of interest to you. If you are producing in another country - regardless of whether you intend to sell in that market or not. You should consider registering in that country, to ensure that you are protected against copying within that geographic area.
Copyright on the other hand is an automatic right. There are a number of international treaties regulating minimum standards for copyright law - there are however some disparities across international borders.
There is more detail on this in the individual descriptions of the rights below.
What can be protected?
IP is generally divided into two branches - namely industrial property and copyright. Industrial property largely protects inventions, the most commonly used forms are patents, trademarks and industrial designs. Copyright protects literary and artistic works. The most common IPRs are discussed below.
Patents
Patents are used to protect inventions, i.e. new products or processes containing a new principle or idea. The idea itself is not protected - it is the product or the process. It is a monopoly right granted by a State to commercially exploit an invention in that country - in return for full disclosure of the invention. It forbids others to commercially produce, sell, work, use, import and possess the invention.
A patent can be granted for the following
• A product
• The apparatus for producing the product
• The process for producing the product
• The use of the product
In order to be patentable the invention must satisfy four conditions of patentability. It must be capable of industrial application; it must be novel and show a new characteristic beyond what is already known in its technical field; it must show an inventive step beyond what a person with average knowledge in the technical field posesses and finally it must fall within the scope of patentable subject matter. This varies from country to country, but common examples of subject matter excluded from patentability include scientific theory, mathematical methods, methods for medical treatment and any invention where commercial exploitation would be considered to be contrary to public order.
International patent situation
There is no such thing as a world patent. Each country grants its own patent rights over its own territory. However there are international and European application procedures. It is possible to submit an ‘international' application under the Patent Cooperation Treaty (PCT) where a number of countries can be designated and the rights preserved to submit applications within them. There is a 12 month period before you must decide which countries you wish to designate in the PCT application. The contracting states to the PCT can be found here.
A European patent application can be submitted to the European Patent Office (EPO) designating which of the 38 European countries the application refers to. The patent is then processed at the national level in each of the designated countries. This results in a bundle of patents having effect at the national level.
Copyright
Copyright protects artistic creations; books, music, paintings, sculptures, films and technology based works such as computer programmes. In some jurisdictions there is also sui-generis protection for electronic databases. It affords exclusive rights to produce and sell copies, to import or export the work, to create derivative works, to perform or display publicly or to sell or assign the rights to others.
It is an automatic right - granted once the work is created and it automatically belongs to the author. It does not need to be registered nor does it need to be published - however there should be a record of it. Copyright is represented with this symbol ©. It is not mandatory to use this symbol - you still benefit from copyright protection without using it. However it is recommended to mark a work with the date on which it was created, the author name and the symbol.
Trademarks
A trademark is ‘any sign capable of being represented graphically and which is capable of distinguishing goods or services of one undertaking from those of other undertakings'. It is a businesses' way of being represented in the market and is central for building up a reputation for the business.
Words, logos, slogans and any other distinguishing mark can be registered. In many jurisdictions this has been extended to permit sounds, colours and even smells e.g. the smell of freshly cut grass for tennis balls. A mark should be distinctive and should not be descriptive. For example the word apple could not be registered for a brand of apples as it describes the product, however ‘apple' can be used for a brand of computers.
International trademark situation
A single international application system exists for registering trademarks in multiple jurisdictions. This is known as the Madrid system. A trademark owner can file an application in one jurisdiction with one set of fees, make changes and renew registrations through a single administrative process. As with patents these remain national trademarks. Members of the Madrid Union can be found here.
A European Union Trademark is now possible. A single application can be submitted to the OHIM (Office for the Harmonisation of the Internal Market) which can result in a single Trademark covering all European Union Members.
Industrial design rights
Registered designs provide protection over the appearance and shape of a product. It is also possible in many jurisdictions to register brands and logos as designs. They do not provide any protection for the technical/functional features of the product - this is protected by patents. There are novelty requirements similar to those necessary for patents.
International Design situation
There is a similar application system for designs as there is for trademarks, it is known as the ‘Hague' system. The list of countries party to the Hague agreement can be found here. A single EU design right is also available through the OHIM under the same practices as trademarks.
Terms of cover
Patent 20 (some countries have 17 years)
Copyright Life of author plus 70 years (Europe)
Registered Design 25 years
Trademark Indefinite (povided renewal fees are paid and use can be shown)
Which Rights should I choose?
A strategy for IPRs is vital for a company. Very often it is not simply a case of choosing one right, but is about having a suite of rights. It is also necessary to have a strategy for exploiting the rights. Having an IPR in itself is of little value if this is not combined with a strategy for exploitation.
How to make money from IPRs
There are a number of strategies which can be used to exploit Intellectual property. A company can use either one or a combination of these strategies.
These include the following
- Own use - A company can use and exploit the right themselves within their own company.
- Assignation - A company can sell the rights
- Licensing - A company can lience the rights to others to use.
- Franchising - A company can franchise the rights such as practiced by McDonalds and Burger King
- Merchandising - A company can allow others to use their rights for merchandising such as Hello Kitty and Mickey Mouse
How can Innovasjon Norge help?
Innovasjon Norge has a network of regional advisors to help you with your Intellectual Property issues. We offer two main services which are currently provided free of charge; these are
Advice: We offer advice on how to protect and make a profitable business out of your ideas both nationally and internationally. We offer neutral guidance on how you can develop strategies for protecting your intellectual property. We can assist you through licensing processes and negotiations.
Assessment of your idea: We can help you with a technology based idea to identify the market opportunities and clarify your opportunities.
We evaluate the technology and market opportunity based on searches in relevant sites and databases. We will also help you clarify the market interest for your technology at a later stage. Our service is free and neutral.
Contact your Local Innovasjon Norge office.
