10 Things About IRP You Should Know Before Going Open Source

10 Things About IRP You Should Know Before Going Open Source

04-Dec-2014 by SophiaKirova

Have you squeezed in an intellectual property rights strategy somewhere on your agenda? No? I thought so!

We know many of you just don’t feel like entering this dense jungle of legal lianas and peculiar beasts, at least not unarmed with a sharp machete. Why should you anyway?

Open source hardware and software ventures such as Arduino and Linux do without IPR, so why can’t you too?

Can Your Startup Ignore IPR?

Not so long ago, our dear friend and entrepreneur Sjaak Deckers vigorously advised all startups to secure their patents. And he had a point.

I mean, remember when you were brainstorming that cool name your startup happens to have today, how many shots at checkdomain.com did it take you to get a free one? Weren’t the first 10 really cool ideas you had already taken?

This is just the beginning. IRP is not all about protecting your own rights, it’s also about not violating someone else’s. You wouldn’t want to wake up one day and realize that you cannot drive your company anymore just because someone has already patented a little piece of what your business is built on, would you?

Before you decide to go the open source way, here are a couple of things about IPR that you should know:

1. Patent, Copyright, Trademark, Trade Secret
These are a company’s intangible assets, for short, which can be protected.

Patents essentially prevent other people from making your product. But at the same time, patents assume you disclose publicly the method of making your product. Once your patent runs out, anyone can make your product, unless you renew it.

Copyrights are implicit and include everything from writing, painting, sketches, and last for a lifetime. Trademark is your brand’s name and logo. Trade secrets include know-how, such as Coca Cola’s recipe, ideas, lists, contacts. You cannot file it, but you can include special clauses in your company’s policy, partner and employee contracts.

2. Any Startup has a set of Intangibles that can be protected
You can start with your trademark and move on to your technology. Any of your assets, so to speak, entails one type or a variety of unique intellectual property that can be protected. Bear in mind, however, that it’s all but simple – you need an attorney.

3. IPR Filing follows your Business Model
Filing a patent starts with a problem that needs a solution and how you fit into that picture. This means that the specific field of use of your device or invention also plays a big role. If you have a pill, are you going to use it in pharmacy, for cattle or in agriculture?

4. Novelty Search and Obviousness
A possible patent is the greatest advantage you have over your competitors – if your tech saves 30% energy compared to similar device used for the same purpose, then there is something about its circuitry that is patentable.

The decision to grant a patent is based on whether or not your novelty is out there somewhere, publicly visible and findable. If not, then it’s your lucky day.

5. Infringement
Any kind of improvement of an existing invention can be patented but that still doesn’t guarantee your rights to exploit your product. You might still need permission to use anything in your device that has been patented by a third party. Say, the fabric you’ve chosen for your design is patented and there are claims that say you need a license.

If you don’t obtain the license and yet commercialize your product, you’re infringing the rights of the fabric’s producer.

6. Patent Landscaping and Freedom to Operate
Ok, you decide not to go for a patent of your own device, but it’s essential that you identify whether any patents held by third parties might block your operations.

In a nutshell, if there is a patent of a similar technology in a certain country that means you cannot be involved in any production, export, import, loan and leasing of your product in this country. You’ll be in infringement again.

Patent landscape means mapping the extent of the patent across the world.

7. It has to do with Partners and Manufacturing
A contract between your startup and your partner or manufacturer should clearly state who has the right over the design, the product, the data output, the method, etc.

8. IPR can be Profitable
Think franchising or Microsoft – you can purchase Windows and Office, but in exchange what you get is only a leased licence to use them. It’s Microsoft who gets all the goods. Every time someone is in the unlucky situation of needing your protected property, he pays you a royalty or cash.

9. It’s Expensive and takes Time
It can take an average of a year and a half to move from the application to the actual patent grant. Every country has different procedures, fees, and durations of the patent. Multiplied by the number countries you want to cover, and the times you’ll need to renew your rights, it can be quite a burden on your budget.

Plus, you’ll need an attorney at some point, whose services will also contribute to the bill.

10. Investors Love it
Needless to say, investors want to see the sustainable advantage of your startup that can quickly and effortlessly prove their investment is worth it. A company with a robust IPR portfolio is worth more than a company without any thereof.

Doesn’t this make you wanna start filing? Not really?

How do the the alternatives look like?

If you decide to go the open source way, there is one really good thing about it: if you make your know-how available to the public, no one else can patent it. Yet, anyone can copy it.

The bigger risk is, since no one else can patent it, it’ll be nearly impossible to find out who is doing what and where with your intellectual property.

On this occasion, consider Design Rights, a.k.a. only the looks of your invention, as a great alternative to a fully-fledged patent.

Here’s an awesome take on open hardware and the ways it can outsmart the IRP jungle: