Protecting Unpatentable Inventions

Not every invention is patentable. Yet, inventors and companies may decide to proceed to market with an unpatentable products or services. This article will explore other intellectual property protection options that exist beyond patents.

Build a Brand
In many cases customers purchase a product or service because it is provided under a recognized brand name. This may be true regardless of whether the product or services is patented. Therefore you may decide to choose a strong trademark for the product or service. Then you can market that trademark so that customers associate that trademark with the type of product or service you are selling. The goal is to build a brand so that consumers will seek out that brand when purchasing your goods or services. In this way customers will choose your brand of product, even if there are competitors selling the same or similar products/services.

The brand can be built around a product/service name or around a company name or both. If the names used in your branding are unique (they should be), then you can seek to obtain a federal trademark registration which will provide additional benefits. The trademark rights built around your product or service will not prevent competitors from copying the product or service. Yet it will prevent them from using your trademark or a similar mark. The strategy of building a brand is designed to draw customers to your brand regardless of the competition.

Copyright
It may be possible to protect your invention under copyright law. However, copyright protects the expression of an idea but not the idea itself. Therefore if you write software creating a new type of application, copyright protection will protect you from direct copying of the software. But it cannot prevent others from copying the idea and writing their own implementation of that idea. The copyright protection extends somewhat beyond identical copying, but the point is that copyright provides narrow protection of the expression of an idea as compared to patents.

Trade Secret
When an invention cannot be patented, it might be protectable as a trade secret. Not all inventions are capable of being protected as a trade secret. A trade secret may generally be understood as something that has economic value, is not generally known, and is subject to efforts to maintain it as a secret. Therefore, if the invention is embodied in a product that is distributed to the purchasing public and whom can reverse engineer or discover the invention by inspecting the product, then it is unlikely that the invention can be protected by a trade secret. However, if the invention is capable of being maintained in secrecy, then trade secret protection might be relied on.

Contract
It is possible to draft a contract that requires the party receiving the invention to keep it confidential and not disclose it to others (similar to an NDA). This is more likely to occur with business to business transactions where the sale involves significant money or resources to execute or implement. The other party would need to agree to such a confidentiality term.

This does not work with consumer goods because the product often needs to be marketed broadly and public ally where the invention details may be disclosed.

Conclusion
There are a number of alternative approaches to protection when your invention is not patentable. While each alternative is not a complete substitute, the options above may provide some protection when proceeding with a product or service in the absence of a patent, depending on the circumstance.

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