There is a growing awareness of the importance of intellectual property rights (IPR). Headline-making patent infringement cases such as Dyson's £4m award against Hoover in 2002 and the $612m payment by BlackBerry maker Research in Motion to patent holding company NTP in 2006 help make the point that ideas can have both a monetary value and rightful owners.
There is, however, less awareness of how hard it can be to establish ownership of an idea. Because intellectual property can bestow a significant degree of commercial monopoly, the legal test of novelty is rigorous and most ideas proposed as inventions fail it.
A novel product or process is one that incorporates significant and distinctive elements not known previously and not available from competing products. The rewards from invention come from the legally recognised right to own and exploit the inventive step - the bit that matters - and this is difficult or impossible if there is prior art, or evidence that the idea is not novel.
Prior art is a legal term that broadly means any evidence in any recorded form from any source that an idea is already known. Its scope is limitless: for example, Leonardo da Vinci’s drawings of flying machines can be prior art; so can wacky devices used by cartoon characters; so can utterly pointless, unworkable and seemingly absurd ideas. In short, if there is copious prior art for your inventive step, you don’t have an inventive step.
In many cases, either the idea isn't novel at all - prior art covers it entirely - or it isn't outstandingly novel by comparison with similar ideas. This can be a difficult judgement to make but if the residual novelty - that is, whatever remains after related prior art is deducted - doesn't amount to much, the idea may not be worth pursuing in business terms.
The novelty test can be self-administered using a free patent database such as Esp@cenet. Where prior art status is easy to assess, this DIY approach may be satisfactory. But where findings are hard for the lay person to evaluate, the advice or more professional search skills of a patent attorney may be needed.
According to the UK Patent Office, a registered design is “a monopoly right for the appearance of the whole or a part of a product resulting from the features of, in particular, the: lines, contours, colours, shape, texture, materials of the product or its ornamentation”.
To qualify for registration, your design must:
- Be new - this means that it must not be the same as any design which has already been made available to the public
- Have individual character - this means that the overall impression it produces on an informed user of the design must differ from the overall impression produced on such a user by any design which has already been made available to the public. In assessing individual character, we take into account the degree of freedom of the designer in creating the design.
The Patent Office cannot register designs which are:
- concerned only with how a product works, or
- for parts of complex products that are not visible in normal use, or
- contrary to law or morality.
Registration can last for a maximum of 25 years and is a property that, like any other business commodity, may be bought, sold, or licensed. A registered design is additional to any design right or copyright protection that may exist automatically in the design.
Designers may be able to suggest improvements to the invention which enhance both its commercial prospects and intellectual property (IP) value. However, this is an area with high dispute potential, particularly if - as often happens because of shoestring project budgets - the designer becomes a risk stakeholder rather than a conventionally paid supplier. To prevent a dispute stalling the project, it's vital to establish early on and by written contract how everyone is to be rewarded and how ownership of the IP is to be shared.