IP advice: What can my business protect?

In this article, we will look at what can be protected within an engineering product and how. Some IP rights, such as copyright, exist automatically. If the product is a software program, for example, then copyright will exist in the source code produced by the author. Similarly, drawings of a product will attract copyright automatically. However, one of the key limitations of copyright is that you have to prove copying. Not only do you need to prove that the copier had access to your product, but that they also took a substantial part of the original, which can be a difficult test to meet. If the innovation that makes products sell is an idea or concept built around a combination of technical features, then copyright will not protect a product with those features unless there has been copying. Neither will it protect the innovation in that product if someone reproduces the same innovation or concept without copying the same expression of that innovation or concept. This is because copyright protects an author's original expression in a literary or artistic work, rather than technical innovation. One of the most powerful IP rights is the patent. The patent is an absolute monopoly right and is infringed whether or not the infringer was aware of the patent. Furthermore, there does not have to be copying in the sense that the copier did not have available the original article or indeed that anything embodying the invention has been made. This makes the patent extremely powerful for technical inventions. The patent protects innovation with respect to the 'state of the art'. A patent is formed from different parts. It has a front page providing bibliographic details, such as the inventor(s), the name of the patent owner or applicant and a short abstract. There usually follows a lengthy description, written in legal terms, followed by a set of drawings. However, the most important part of the patent is the patent 'claims', which come between the end of the description and the drawings. In this established legal practice, the inventor stakes their claim (as in what he claims his intention to be) and then a list of features or steps defining the contribution made by the inventor to the state of the art. One of the key areas of innovation for engineering businesses is to develop software programs, whether it's an application program running on a pc or a signal processing algorithm running on a dedicated chip. A common misunderstanding is that patents are not available for software. This is not true; the European Patent Office (EPO) grants many hundreds of patents based on innovation in some aspect of software. Only a very few patents are rejected for being based on software and this is only because the claimed invention does not include an aspect of technology or includes an aspect of known technology and the innovation relates to something non technical. One example where the exclusion might apply, even when companies innovate, is where an invention relates to a software generated graphical user interface, such as that produced by a set top box. This was the subject of litigation between Virgin Media and Gemstar, which alleged infringement of three patents to a graphical user interface for Virgin's set top boxes. The European patents related to the organisation of channels and data on a television screen. The patents were granted by the EPO, but subsequently held invalid by the High Court for the reason that the claimed invention related to the non technical presentation of information that did not provide a technical effect. The absence of technical features in the claims can make the job of the Patent Office difficult in terms of prior art, because a keyword search of prior art will be meaningless. On the other hand, a search that does not identify relevant prior art can lead to a false conclusion that the claimed invention is new and has an inventive step. By contrast, as soon as an invention includes some technical aspect that combines with a graphical user interface, then the exclusion should not apply. For example the 'slide to open' feature of a smartphone should be patentable, because the invention requires an interaction between the touch sensitive sensor and the smart phone's processor to detect conditions for unlocking the smartphone. Further detailed information is available in the Knowledge Bank or by contacting a Partner at D Young & Co LLP. Both can be found at www.dyoung.com