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Protecting your intellectual property in a digital world

Your business is creating innovative computer code, slick user interfaces, and is using digital technology to solve new problems. How do you protect your investment?

Have you ever stopped to think about what makes a good digital product? Maybe it is the skilful coding or inspiring visual design? Perhaps it is part of a franchise or brand that means something to potential users? Could it be the valuable data that is produced or the way that data is used?

These key value propositions are often the result of the creativity and skill of the team behind the product – an insight to spot a desirable feature, not to mention a great deal of time, effort, money and resource. But in a world in which it is often much easier for others to simply copy than create and innovate, how do you maximise the fruits of your skill and investment?

It’s easy to underestimate, but intellectual property can help to protect many of these key value propositions and be of significant value. It can swing the balance of reward from the copiers to the creators and innovators.

Intellectual property protection can be combined with licensing to create a wide range of strategic options for maximising the value or usefulness of these key assets. As such, intellectual property, when used in tandem with a suitable licence, can be viewed as providing creators and innovators with a degree of control of their main value propositions.

Intellectual property comes in many forms, including patents, trademarks, copyright, registered designs, knowhow, database rights and integrated circuit topography rights. Each form of intellectual property can cover different areas, have its own merits and disadvantages, and the rules for each can vary from simple to complex. Some forms of intellectual property even exist automatically and for free.

It can be hugely beneficial to understand how to identify your intellectual property, how to protect it and how to use it to best effect. Whatever your goals for your creations, intellectual property can be the tool that helps you achieve them. From that point of view, it is crucial to know and understand the various forms of intellectual property and how they can work for you or be used against you.

The digital community is well aware of the many forms of intellectual property and successfully implements schemes to capture and protect them. For example, copyright has long been a central pillar of protection for software code and many will know how to identify and capture copyrighted code in a way that allows the copyright in it to be successfully enforced.

Branding or building a community or franchise is also widely used in the digital field. In this respect, trademarks are widely used to help protect the identities and values of many entities from commercially successful products to open source communities. 

Apart from trademark and copyright, intellectual property takes a variety of forms, many of which are less well understood. For example, in Europe, design registration can be used to protect visually appealing aspects of digital design, which is useful if you have devised a great-looking user interface, games characters, icons, fonts, or indeed any product that relies on graphic design or attractive visuals. 

Then there is data – Clive Humby’s new oil. Database rights are among the lesser known forms of intellectual property, but can be exceedingly valuable and could apply if there has been a “substantial investment” in obtaining, verifying or presenting the contents of a database.

Patents are among the better known forms of intellectual property. Patents can be particularly beneficial because they can cover wide-ranging technical concepts, including features of products and methods of making, installing and using. 

Computer-implemented inventions

For many, patents for computer-implemented inventions are controversial, but have been successfully granted across jurisdictions including the US, UK and Europe. However, the patentability of such inventions varies between jurisdictions and some exclude certain computer programs from patentability.

The European Patent Office (EPO) will potentially allow a patent if the claimed subject matter is novel and inventive and provides a technical contribution in a technical field – even if the invention is computer-implemented. An inventive computer program itself can potentially be patented at the EPO if it is capable of bringing about, when running on a computer, a further technical effect going beyond the “normal” physical interactions between the program (software) and the computer (hardware) on which it is run.

Intellectual property can be layered to combine the benefits. For example, copyright provides a degree of protection for computer software code and automatically exists when the code is tangibly fixed and set down. However, the protection afforded by it is generally not as strong as patent protection, because copyright is only infringed by copying – rather than independent creation – which can be difficult to prove.

Also, copyright is intended to cover an expression of an idea, rather than the idea itself. As such, copyright protection generally applies to the code, while patent protection can potentially apply more broadly to the fundamental new ideas and concepts that may lie behind a new piece of software.

Essentially, there are a number of mechanisms available to protect intellectual property associated with digital innovation – and it is up to the innovators to make sure that the results of their skill, investment and labour are protected.

Given the rapid speed of digital change, it is increasingly important to have a strategy in place to make the most of your intellectual property.

This was last published in April 2018

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