Don’t let your best ideas be taken over by others. There are plenty of ways to make sure that your intellectual property is safe and secure

HAVING PUT LONG hours into developing a bright idea, the last thing any budding entrepreneur wants is for someone to steal it. The catch-all term to cover the broad sweep of ideas ownership is intellectual property (IP), and patents, trademarks, designs and copyright can all be used to protect it.

Where a physical product is involved, it is obvious what needs to be protected. But in today’s world of rapidly evolving information and communications technology, the ideas that enable high-tech companies to prosper are equally valuable and need protecting.

While protection is important, it does not have to be rushed into. “For cash-strapped companies, especially start-ups with no money coming in, my advice is to get on with developing the business, generate some income and seek protection for your immediate needs,” says Philip Coyle, a partner and European patent attorney with FR Kelly, which specialises in the area. “There are few enough companies that will need to incur the cost of a worldwide patent from the off.”

A patent will protect your idea from the day of filing for a fixed period and it will stop others making, selling or using the technology protected by it. However, it is important to keep your idea confidential prior to filing the application. The cost of an initial patent filing (for Ireland and 37 countries in Europe) will depend on the complexity of the application. Typically, it is about €1,500 to €3,000 for something straightforward and €5,000 to €10,000 for patents involving more detailed work. Periodic fees are paid after that. A patent lasts for 20 years from the date of filing.

Coyle also advises companies to pause before applying, to ensure that everything is correct and covered off. “Bear in mind that the first application filed can form the basis for the protection of the invention for 20 years to come,” he says. “There is good awareness of and respect for patents and patents are also increasing in value. In the US, for example, the Nortel Networks patent portfolio was sold for $4 billion.”

Trademarks are normally used to protect a company’s brand. Registered trademarks often have the ® symbol beside them. For unregistered trademarks, it is advisable to use the ™ symbol to assert your rights. Trademarks are precious because they help to establish your brand with consumers and ultimately influence their buying decisions.

Trademarks can be as simple or as adventurous as you like. Some of the more attention-grabbing ones out there are: The Natural Choice (biodegredable coffins), Sexy Mother Pucker (lip gloss) and Aquaholics, which is a scuba-diving business in Northern Ireland. A trademark for Europe, covering the 27 countries of the EU, will cost about €2,000.

Design protection covers the aesthetic aspects of a product, for example, designs for Newbridge silverware or Waterford Crystal products. Design rights can be registered and, if necessary, supplemented with other forms of protection.

Design protection extends to packaging and it is not uncommon to see legal skirmishes between companies if they believe a competitor is “stealing” their look. The claims made can be a mixture of design and copyright infringement and also “passing off”, which is a type of unregistered trade mark protection.

A recent example is the action taken by McCambridge’s bakery, which sued Joseph Brennan Bakeries, over alleged infringement of its IP rights in the packaging of a stone-ground wholewheat bread. Jacob Fruitfield also locked horns with United Biscuits over packaging for two McVitie’s products (fig rolls and cream crackers), which it argued would cause confusion among purchasers and potentially damage its brand. The outcome in such cases is by no means clear cut.

Jacob won its argument on fig rolls but lost on cream crackers as the judge said there was clear differentiation between the two products.

Copyright protects literature, film and music as well as sound recordings, broadcasts and software. Copyright protection is free and automatic but Coyle points out that “copyright doesn’t necessarily guarantee protection against a competitor independently creating identical or closely similar works”. He advises companies to mark their territory by putting a formal note on a sketch that dates it and asserts ownership and have this witnessed. Copyright owners use the © symbol together with a “rights reserved” notice for this purpose.

Many of today’s high-tech companies depend heavily on clever software and, while the software is protected from external infringement by copyright, companies also need to protect it from within. For example, if a start-up involving two partners goes sour and the partner responsible for developing the software leaves, does the company or the individual own the software?

“That will depend on how things are set up and it’s important for people to think about this from the outset,” says Anne Bateman, a partner and head of IP and technology at Philip Lee solicitors. “The longer things go without formal agreement, the greater the potential for a falling out as additional value is being created all the time. My advice is to make an agreement on the IP and write it down as early as possible and think about the company structure you need to support this. For example, if you are hiring someone as a consultant to write software, then you will need an agreement that transfers all the IP to the company.

“It is also important to document the know-how behind the software or an invention. People carry a lot of additional knowledge in their heads that may be vital to how things work. It is important that they disclose this information on an ongoing basis to the company and that they sign a confidentiality agreement around it.”

Bateman also advises companies to put IP symbols and notices on their products, marketing materials and websites. “If you find people are infringing your IP rights, make sure you take prompt action against them, including writing to them. If you fail to protect your rights, you can dilute them and maybe ultimately lose them altogether,” she says.

CASE STUDY: HANDLE HYGIENE

Brian Cunningham became interested in hospital-acquired infections when a member of his family contracted MRSA. Now the company he founded has developed an automatic door handle sanitising system that promises to kill 99 per cent of bacteria .

GOOD HAND hygiene plays an important part in the prevention of the spread of illness and disease. But even those who rigorously observe hand-washing protocols are at the mercy of those who do not. This is especially the case in public toilets where the door handles are often home to all sorts of nasty passengers.

A young Irish company, Handle Hygiene, has developed an automatic door handle sanitising system that addresses this problem. The man behind the original idea is mechanical engineer Brian Cunningham, who became interested in hospital-acquired infections and shortcomings in hand hygiene when a member of his family contracted the antibiotic-resistant bug, MRSA.

The company's product has been in development for more than four years and its slimline design and low maintenance, coupled with the fact that it is powered by gravity rather than a battery, gives it a substantial advantage over anything already on the market.

Cunningham says the system also kills 99.9 per cent of bacteria and prevents cross contamination.

Since launching its prototype, the company has been overwhelmed by the amount of interest in the product from the healthcare and food sectors in particular.

"From speaking to people, we became aware that many of them have a real phobia around touching the door handles in toilets and will go to all sorts of lengths – like using their sleeve or tissues – to avoid it," says Cunningham.

"Toilets already have touch-free taps, soap dispensers and towels but you still have to open the door – and the handles are a haven for germs. Our system – which is about to go on trial with the NHS in the UK – fulfils an unmet need as the level of interest shows."

Cunningham teased out his idea with Dr Ronnie Russell, a senior lecturer in Microbiology at the Moyne Institute of Preventive Medicine at Trinity College Dublin, who provided scientific back-up during development.

Cunningham's partners in the venture are Maurice McDonagh and Brian Graydon, both of whom have backgrounds in industrial laundry services.

"The project has really taken on a life of its own and has cost about €250,000 to get to this point," explains Cunningham.

"The potential for the product really only became clear as we developed it, and we now have the backing of Enterprise Ireland, which has assisted us with funding and know-how and is helping us through the process of getting FDA [Food and Drug Administration] approval in the United States."

Handle Hygiene filed its original patent in 2007, but Cunningham says in retrospect this was too soon. "We should probably have worked on the idea in privacy for longer," he says.

"The initial patent protection is for 12 months and we weren't ready to launch at the end of it. My advice to people is don't be in a mad rush. Keep your idea under wraps until you're nearly there and then spend the money on the patent protection."