Due to changing times, the concept of property has acquired a new dimension by entering the age of science and technology. Be it an established business company or a startup, Intellectual property has a major role in deciding one’s competitive advantage and potential value to investors. We at Thesuits.in make it a point to address these IP portfolio items before you start looking for funding.
Do you really need to consult an attorney for guidance to intellectual property?
The answer is a big YES! Intellectual property is a business asset carrying commercial value. Startup companies should be proactive in developing and protecting their intellectual property for many reasons, including
- To increase the value of their business
- To gain competitive advantage
- To use intellectual property as a marketing edge strategy
- To use potential revenue stream through licensing.
The nature of protection of IP is exclusive and limited to a certain period of time. Some of the common forms of intellectual property are patents, copyrights, trademarks, trade secrets and designs.
Let’s assume that your startup has come with an invention like a “time machine” or a technology that helps you read others minds. What your startup would now need is to acquire a patent for it. Patents promote scientific research and technology for the greater good of the society. However for your time machine to acquire a patent, it is necessary that it meets the prerequisites which are:
- Inventive step
- Patentable subject matter
- Industrial Applicability
- Specification with novelty
Inventive step is the most ambiguous patent requirement. The invention should not be obvious to a skilled person in that particular art. A simple example would be that if I create a product from turmeric that helps in for the treatment of inflammation, psoriasis and gastritis, I cannot claim a patent on it as the Indian society has been well acquainted with the general uses of turmeric. For acquiring a patent, the invention should not be declared by the act as not patentable. An invention would be capable of industrial application if it is capable of being made or used in an industry. Novelty would imply that all the elements of an invention must not be present in a single prior art reference.
The term for a patent is twenty years (20) and if you want to keep your patent alive, make it a point to deposit renewal fee every year. If someone has infringed your patent right, the appropriate place for filing a suit is the District Court.
If your startup deals with fields such as television, entertainment, software or publishing then copyright laws are the first thing that you should think about. The Copyright Act, 1957 protects the creative work of writers, authors, photographers, music composers and directors. The emergence of digital media has made the issue of copyright all the more complex.
Most of the time people are confused between what is an idea or an expression. Copyright protects ideas which are expressed on a tangible form i.e. paper, canvas or tape. One should note that only expression of ideas is protected and not the idea itself. Copyright protection extends to works that are original in nature and should have a minimum amount of creativity of their own. The term of copyright varies from work to work, for example in case of literary works copyright protection extends to life time of the author with addition to sixty (60) years. While a performer’s right and broadcaster’s rights extends to 50 and 25 years respectively.
Copyright does not require registration and commences when the work is created. However to be in an advantageous position, one should register as its gives rise to the presumption of ownership of copyright. Infringement of copyright can lead to both civil and criminal liability and therefore one should be extremely careful on that.
Trademark is a form of representation and may be a logo, picture, sign, symbol or word. It has the capacity of distinguishing one product or service from another. Therefore it is considered to occupy large percentage of the financial value of a particular company. For a trademark to be protected it should be distinctive in nature. Trademarks can be generic, arbitrary, fanciful or descriptive. A trademark also need not be registered but the advantage that comes with registration is that you can initiate legal proceedings against infringement. For filing of trade mark, the application should specify the trade mark and indicate the class of goods and services for which the trademark is applied. It can be filed at offices such as Mumbai, Chennai, Ahmedabad, Delhi and Kolkata.
The term of a trademark is proportional to the life of the business under which it is used. Generally the initial protection on registration is for ten (10) years and can be renewed for another ten if need be. A common term known as passing off makes a person liable when he misinterprets his mark in such a way that it results to damage to goodwill associated with the trade mark
We all are well acquainted with the fact that it is better to not to disclose everything. Startups should keep this in their mind as trade secrets give competitive advantage to a business. For a country like India, Trade secrets are protected from court decisions and a combination of laws as there is no legislation for trade secrets. To qualify as a trade secret, the following requirements are to be met:
- Should not be generally known
- Not readily ascertainable
- Independent economic value
- Reasonable measures to maintain secrecy
The trade secret should have an independent economic value. The information would be called to have to be of economic value when a competitor has invested money and effort to do the same. One should also consider Non – compete agreements.
Apart from the above mentioned components one should look at the design of a product, customary wisdom and business value. Intellectual property law, although complex, is critical to the success of most, if not all, startups. They must make early and material investments in their intellectual property portfolios to avoid waste of time and money. This may involve the engagement of qualified legal counsel, which may involve the expenditure of precious resources, it must be remembered that these expenditures create assets and, in the case of patents, limited monopolies.
The author would suggest a book on Intellectual property by Dr. Kalyan C. Kankanala named Fun IP for a basic knowledge of IP law in India.
(The opinions expressed by the author in the articles are only be used for reference purposes. Please seek appropriate legal advice from a duly licensed attorney .The author shall not be liable for any wrong interpretations of the reader.)