1. General Comment on IP rights (IPR)
IP rights are "exclusive" rights which do not grant the right to use the protected IP. IP rights only enable their owners to prevent others from using the owners proprietary IP. Regulatory approval may be required to use the IP, e.g. a new pharmaceutical compound or composition. In some cases, a patented invention depends on an existing patent and prior permission from the owner of the existing patent will be required in order to use and exploit your own patent. Importantly, IP rights are governed by the national laws of the states in which protection has been granted and are limited to the territory of said states. These national laws which differ from one country to another will also influence the use of the protected IP in a particular country. With the exception of Trademarks, all IPR are or can only be secured for a limited period in time.
The list of IP rights highlighted below presents the most common forms of IP protection but it is not exhaustive. Additional specific IP laws exist in different jurisdictions, such as plant breeder’s rights, mask work rights, and others.
Patents protect technical inventions for a defined period (20 years for a “regular” patent). The patent right is, as all the other IP rights with the exception of copyright, no automatic right but must be applied for with a Patent Office where a patent application will be examined and, if approved, a patent will be granted.
A successful patent application must meet the following criteria:
The invention must be absolutely novel and may not be known in the “prior art” (= anything that has been disclosed to the public in any form about an invention before a given date) before a patent application is filed. The inventive matter has never been published before, including but not limited to publications in scientific journals, at conferences, blogs, websites, etc. It is noteworthy that even unpublished patent applications can impact on the novelty aspect of an invention.
Inventiveness or inventive step
An invention has to be non-obvious and could therefore not have been anticipated by a “person skilled in the art” (=virtual expert in the field who is well trained and knows all the relevant scientific or patent literature). The content of an unpublished patent will not be taken into account for the assessment of inventiveness.
The mere idea of an invention (the “conception”) is insufficient to merit patent protection. The invention should solve a technical problem and the inventors also have to “reduce the invention to practice”. In addition, the invention must be shown to be useful for industrial application.
If the patent description does not allow to reproduce the invention due to incompleteness, the patent may be null and void. Enough data have to be provided in order to demonstrate that the invention works, and to teach a person skilled in the art how to implement the invention. A patent will be published 18 months after its initial filing. The purpose of this publication is to foster the technical advancement of the particular field in which the invention was made. The information disclosed in the publicly accessible patent application can be used for scientific research to obtain knowledge about invention of the patent including its possible applications. However, it can obviously not be used for commercial purposes unless commercial rights are granted by the owner of the patent.
Copyrights are specifically directed at creative and literary works (as opposed to mere ideas or concepts), computer programs and data bases. The works are protected automatically from the date of their completion from which point on the author’s economic and moral rights with respect to his work are protected in Switzerland until 70 years after the author’s death. For computer programs the protection period is only 50 years.
To enforce his copyright an author must be able to provide evidence for the date of its creation. Although not strictly necessary it is good practice to mark original pieces with a ©, the author name and the date of completion, to make the audience aware of the authors rights.
An author’s copyright comprises:
- Economic rights to own, use, modify, replicate, distribute, perform and commercially exploit the copyrighted work, and
- Moral rights to be identified as the author of the copyrighted work and to prevent that the work is used in an unintended manner or misconstrued.
Related or neighbouring rights are copyright-type rights which are independent of the author’s rights and protect for example the rights of performers and broadcasters. In Switzerland the protection period is 50 years after the date of the execution or performance of copyrighted work. This explains that e. g. music productions which have been taped and distributed over 50 years ago are available quite easily today as their neighbouring rights are no longer in force. However, the copyright protection of the original work, as opposed to its performance, may still apply and prevent the commercial exploitation of the work.
4. Trademarks (brand names)
A trademark is a symbol that identifies and distinguishes a product or a service of a specific manufacturer or trader. It is basically a brand name and protects the reputation and goodwill of a particular company, product or service. Among others, it can be a word, but also a colour, numbers, a logo, a 3D shape, a sound, or in fact every sign of every type which has a distinctive effect. Although the intention is to associate a trademark with a particular product or service, the trademark must not be descriptive.
To secure protection, a trademark should be registered with a Trademark Office to establish ownership and exclusive rights to the brand. It is important to point out that business or company names registered at the relevant office for company registrations are not automatically protected by trademark law. The registration of a trademark is of particular strategic interest for new start-up companies and should be considered alongside the registration of the internet domain name and the company name.
Trademarks are the only IP right which can be renewed indefinitely every 10 years.
Industrial design rights are not directed towards the functionality or the technical feature of an article but rather towards the physical appearance and the aesthetic effect of a design for industrial applications.
It is advisable to register a design since the registration confers a monopoly to the owner of the design for a defined period of time. In Switzerland a design protection lasts 5 years (4 times extendable for 5 years, thus for a maximum of 25 years).
6. Trade Secrets or know-how
Keeping a valuable piece of Know-How secret and managing it as a Trade Secret can also be a valid manner in which to protect IP. In particular IP which cannot be sufficiently protected by patenting and does not need to be disclosed to the public can add value to a business if it is treated as Trade Secret. Trade Secrets need to be managed tightly as they lose their value once they enter public knowledge.
Different from a patented invention Trade Secrets do however not provide a protection against infringement by someone who developed the secret Know-how independently. In the worst case scenario, this someone could successfully patent his development and limit your rights to use your Trade Secret or even sue you for infringement unless you can demonstrate that you used your Trade Secret commercially prior to the filing of the patent application. It makes sense to complement trade secrets with trade mark, industrial design, and/or copyright protection to be in a better position to exploit them.