Should You Patent Your Invention, Part 2
Updated: Apr 22
In a previous post, I talked about the importance of filing a patent application if you have an innovative product. But what should you do if your product isn't innovative? Or if you have a short term product for which patenting makes less sense? Should you just not look for IP protection? How do you protect your and your investors' investment?
Well, patents aren't the only IP protection and many times they aren't appropriate. Other forms of IP are available to protect your product.
Many companies work hard to choose the right name, for their company and for their product. They also design beautiful logos and attractive websites. Since this branding is how their customers view them, it would be upsetting, to say the least, to have their branding to be copied. Trademarks serve to protect your mark and your brand, for as long as you are actively selling or in trade.
Once the product engineering is finished, entrepreneurs invest in the external design of their product, often producing very attractive products. Very often, the design is part of the success of the product. Protecting this is the job of the design patent. It is also useful for design elements of software products and, in particular, for the design elements of mobile apps. In fact, Apple filed many design patents for its iPhone, both for the design of the phone itself and for the design elements of its user interface.
When considering a design patent, the patent offices determine the inventiveness of the aesthetic elements, rather than the functional elements. If the beauty of the device stems from its function (i.e. the bowl of a mixer may be beautiful but its shape is wholly determined by the mixing action that happens in it), a design patent is inappropriate. However, if the design is in addition to the functionality (a watch in the shape of an octagon, for example), then the originality of the design may be patented.
We have discussed the product, its mark and its design but we have not discussed its content. For some products, the "content" is the marketing literature and the manuals written about it. For media products, the content is the media itself. How do you protect content for which you have worked hard to produce? With copyrights.
Copyright exists in all forms of content, from books and artwork, which are the traditional forms, to websites, articles, manuals, presentations, software, and all forms of expression. It doesn't require any registration - the work is copyrighted to you as soon as you generate it. However, your rights are easily lost. Many people don't view their copyright as being important and, as a result, don't take the proper steps to preserve their rights. Remembering to add a copyright notice on all documents (websites, articles, software code, manuals, mobile applications, etc) and to ensure that you own the copyright in all documents that others produce for you, will maintain your rights in them.
Other products rely on other forms of IP protection, like author's rights and performers rights, which are rights which the creator of the works retain to themselves. Appellations of origin are relevant to foods and other products which are associated with a particular locality, like Havanna cigars and Swiss watches. Plant patents are for new plant varieties.
Whether or not you can patent your product, you should look to the other forms of IP protection. Some may be more relevant than others for you and you should select those which will provide the most benefit for you.