Some might think that once you had invented a product, designed its appearance and branded it, you had created all of the Intellectual Property (IP) that was ever going to exist. David Harris, patent attorney and partner at Barker Brettell, thinks otherwise. Here he highlights the key stages where an IP plan must evolve along with the innovative product it protects:
The Product Life-cycle. Typically, a product will go through various stages and developments. One key thing to remember is that IP can arise at any time – to make best use of your IP, you will want to make sure that you are ready to capture it. It is important to consider whether to file patent or design applications before any product or improvement is publicly disclosed, stopping others from copying your ideas.
Research and Development. This is often the stage when a large amount of IP will arise. But how do you know something is patentable? A useful question to ask yourself is “is this solving a problem”? If a technical problem has been solved with a non-obvious solution, then there is a good chance that there is something patentable there. In the R&D stage of the process, it is likely that a product is being introduced to replace an older product, or to compete with a third party’s. Therefore it is not the product itself that leads to patent protection but the features of that product which may have changed significantly. If there is an improvement over the older products, that could lead to patent protection.
Where a product is aesthetically different to an older product – particularly where it is a product bought at least partly for its looks – then there is the potential for design protection for the new product.
Also, if the product is being newly branded – a new name or logo – then think about seeking trade mark protection.
Preparation for release onto the market. As an initial concept goes through cycles of being refined in preparation for release onto the market, it is likely that problems will again be solved in order to make a workable, saleable product, leading to the possible generation of yet more IP and in particular patent protection.
Release onto the market. However, the generation of IP does not stop there. Once a product is released onto the market, there may be the need to make changes to the product based on customer feedback or the performance of the product. If the product is improved in any way, particularly if there is a problem being solved, then potentially there is room to patent that improvement. However, particularly at this stage, remember that any public disclosure of the improvement can knock out your chances of getting a valid patent or design registration. It is important to keep it secret until it is sufficiently protected.
If there is any change to the appearance, then you will need to think again about protecting the appearance of the product. Likewise, if there is any brand refresh – maybe new logos even with the same underlying name – there may be a need to protect the refreshed brand. With trade marks, there is also the possibility of getting more and more protection as your product becomes more and more recognisable to your buying public; if colours, the shape of the product or even more unusual trade marks such as a particular smell become associated with your product in the eyes (or noses) of the public, then there is potential to protect that association to stop others riding on your reputation.
Conclusion. To make best use of your IP, continually think whether you are creating anything new. Any change or improvement to a product or how it is sold could lead to some new IP being created. Of course, you may not want to protect every single possible piece of IP going, but if you do not know you have created something, you will be unable to decide whether it was worthy of protection potentially until a disclosure has been made and it is too late to file that new patent application.