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Global Summit
of Women 2007 Remarks
Coordination Sector for External Relations, Industry,
Communications and Public Outreach “Women’s Inventions and Innovations for a Better Competitive Global Market” Time and time again we hear about the importance of invention and innovation for enterprises to survive in the global market place. Everyday we read about how critical it is for an enterprise to be innovative in order to remain competitive and how intellectual property is one of the most valuable business assets an enterprise can own. However, how do you translate your wonderful, useful, new idea from a simple “work of genius” into a competitive advantage and a business asset for your enterprise? There are many tools, strategies and variables that come into play. However, whatever else you do, first and foremost, you must protect your idea. If you do not protect it, and if your idea is as wonderful and useful as you think it is, it will be copied, used and stolen by your competition in no time at all, and with today’s global communications systems, this means anywhere in the world. Soon your idea will no longer be new or valuable, neither as a competitive tool nor as a business asset. So how do you protect your ideas? Primarily, in two ways: 1) as a trade secret or 2) by filing for patent protection. This is the first strategic decision to make. Do I protect my idea as a trade secret or by a patent? Some factors to consider: is it possible to keep the idea secret once you publish it and commercialize it? For example, the Coca-Cola formula is still a secret and cannot be determined by analyzing the chemical component of the drink. It is one of the most famous and valuable trade secrets in business history. On the other hand, most pharmaceutical products can be quite easily deciphered chemically. Once you put the medication on the market, hundreds of laboratories can analyze and copy your product. This is the kind of product that cannot be protected as a trade secret, not for legal but for practical reasons. This explains why the pharmaceutical industry depends so heavily on the patent system. A trade secret is usually protected under confidentiality agreements and unfair competition, contract and tort laws. If your idea can be protected as a trade secret from a practical point of view, one of the most important advantages to consider is that trade secret protection is not limited in time. However, sometimes it may not be feasible to keep your idea secret once you make it public, such as in the case of pharmaceutical products, or you may not wish to protect it as a trade secret for other reasons. Perhaps you do not trust your partners or employees, even if there are bound by a confidentiality agreement. Look at the recent criminal case where Coca-Cola employees tried to steal the Coca-Cola formula to sell it to PepsiCo. Where you cannot or do not wish to protect your idea as a trade secret, your other option is to patent your idea. A patent provides you an exclusive right to the use of your idea. You control who can or cannot use it, and under what conditions (quality controls, together with your trademark, subject to a fee or royalty). However, you should know that a patent is limited in time, usually 20 years. Also, when you apply for a patent, you must fully disclose the invention for which you are seeking patent protection, and this disclosure is published. Another consideration: your idea must meet certain strict criteria of patentability. Some of the more important conditions of protection: 1) the idea must constitute an invention, that is, it must consist of a “solution to a technical problem”; and 2) it must be “new”. Your idea cannot be a mere discovery of something that existed but was not known. It must also be new with respect to the “state of the art”, meaning all knowledge, anywhere in the world. This includes information you might have divulged or published yourself. Therefore, if you think that you have come up with a new solution or idea, make every effort to keep it confidential and secret until you decide whether you wish to patent it and until you file that patent application. Strict conditions of patentability, however, do not mean that your idea has to be complex or sophisticated to be patentable. Take the example of disposable baby diapers. These were invented by a stay-at-home mother, in the late 1940’s, who was tired of washing diapers. She was smart not only to have invented the disposable diaper but also to have thought of patenting the idea. She later sold her patent and became a multi-millionaire. Merely filing a patent application, however, is not enough. Once you file the patent application, you must quickly make another important strategic decision: where do I want to ensure patent protection for my idea? Patent rights are still primarily national rights. Therefore, a UK or a German patent is protectable and enforceable only in the respective country. You must decide, and within 12 months from the filing of your first patent application (with some exceptions), where you want to patent your idea. You have various options for obtaining patent protection in multiple jurisdictions: national route in each country; regional route, e.g., through the European Patent Office (EPO); international route under the Patent Cooperation Treaty (PCT). What you decide will in great part depend on your overall business plan and the geographic scope of your prospective market, and also on your financial resources to pay the costs of obtaining patent protection in several countries. However, be aware that your decision will have important legal consequences. Another important strategic decision: do you want to exploit the patented invention yourself, license your rights to another enterprise, or simply sell or assign your rights? All of these options, if well thought out, adapted to your particular circumstances and used strategically can bring you money and success. There is a priori no right or wrong answer. You can make a decision as to whether to license or assign a patent right as soon as you file your first patent application or you can wait until the patent or patents are granted. You can license or assign your patent right in all or only some of the countries where you have sought patent protection. There are many options and models. You must be creative and flexible and not become overly attached to your invention. Sometimes it is a wise business decision to license or assign the patented idea to another enterprise which has more experience or more resources to exploit your idea than you do. Whatever decision you ultimately make, however, the patent right is key to any such strategy. If you do not have an IP right, what will you exploit, assign or license? Certainly not an idea that is not protected and that anyone can freely and legally copy anyway. Finally, remember that patents are not the only intellectual property tools available to you. In fact, the more IP tools you use, the stronger the commercial synergies you can create. What other IP tools might be available to you? You can consider industrial designs, copyright and trademarks, among others. Successful enterprises frequently own and use a panoply of IP rights. Trademarks are especially interesting as they allow you to develop a brand image for your business and your patented product, whether you plan to commercialize it yourself or to license your patent rights. You can always license your patent together with your trademark. In fact, this can prove highly advantageous. Take the example of Gatorade, originally invented at University of Florida, which for years has exploited both the patent and the trademark successfully though various spin-off and licensing arrangements. In conclusion, innovation and creativity are critical to the success of any business. However, if you do not protect the ideas that are born from an innovative and creative spirit, it is unlikely that you will be able to use those ideas to your competitive and business advantage. So be smart about your ideas, act strategically, and think “Intellectual Property”.
Helen Lom
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