Competence Network IP

Protecting innovation

Innovations should be protected against free use by competitors; otherwise the lead in innovation and the associated costs are quickly lost. Intellectual property rights can be used to protect technical apparatus and methods, aesthetic creations, plant varieties, semiconductor structures and trademarks against unauthorized use by third parties. Prerequisite for this is that certain protection requirements are met (e.g., in the case of patents and utility models novelty, inventive step and industrial applicability). Owners of IPRs have the exclusive rights for the economic exploitation (feature monopoly) of the IPRs during their lifetimes, meaning that only the owner of the IPR is entitled to use the protected subject matter and can prevent any third party from using it.

Such grant of a (feature) monopoly can be seen as a tradeoff between the state and the inventor or creator in the case of patents, utility models, industrial designs, plant varieties or semiconductor structures. The inventor or creator discloses the respective innovation in full detail to the public – instead of keeping it secret and using it only on her own - and in turn she receives a temporary right to the exclusive use of the protected innovation from the state. At the end of the lifetime of an IPR, the knowledge can be used freely by anybody. During the term of an IPR the general public is also encouraged to look for alternative solutions and further developments, which in turn leads to increased development activity and creativity.

The protection requirements for IPRs - i.e. the boundaries of what is considered worth to be protected and what not - are subject to continuous evolution in case law. This is of particular importance in the case of the protection of computer-implemented inventions, because mental concepts should not be entitled to patent and utility model protection under current law. So for a successful and effective protection it is very important to select the correct content and particularly use the right words for an application. Both are crucial for the value of the IPR once granted or registered.

An important protection required for a variety of IPRs is novelty. This means that the invention or creation with all its features may not have been made accessible by the public before submitting a respective application for protection. Something becomes accessible by the public, for example by written, oral or any other publication or prior use. For a patent, for example, a demonstration at a trade fair of a product embodying the invention can destroy novelty if it occurs before the filing of a patent application. For some IPRs so-called grace periods exist. During a grace period a publication made by the inventor or creator may not necessarily harm novelty. However, to avoid any risk one should always take into account an IPR application which is submitted in due time the invention or creation is disclosed to the public.

Protection of software innovation

The protection of software innovation is still pretty much equated copyright protection. However, copyright only protects the literal expression of the program - the implemented software code. Furthermore, copyright provides protection only against the actual imitation of the protected work. That is, copyright does not provide an effective blocking effect contrary to patent protection. In many major markets today, patent protection for software innovation is possible to protect all alternative embodiments of a general concept (architecture, algorithms, etc.) which is behind a concrete software implementation. An excellent understanding of the different requirements for the patentability of computer-implemented inventions in different jurisdictions is necessary to create valuable patent IPRs for software innovations. European patent applications for technical software inventions should also meet the main requirements of other jurisdictions if the applicant wants to obtain protection in the respective markets, too. Given the ubiquity of software innovations through the Internet, this is an important aspect in the decision to seek protection for software-related inventions in the relevant markets.

IPR related planning

Patent protection of innovation is always associated with costs. Such costs are difficult to forecast because of the complexity and the often required international scope. In case of clear budget constraints for the IPR related planning absolute cost transparency is a desirable and sometimes necessary basis for decision making. New, innovative and very efficient service systems can make a helpful contribution. The combination of cost transparency and reliability of the cost preview, along with the efficient discharge of the administrative processes and professional service quality are the basis of modern and successful patent management.