Before starting to market or sell a product, process or idea, it is advisable to stop and examine the available options and seek professional advice at the outset. Taking advice early can avoid expensive ongoing legal disputes at a later stage. Deciding on the correct form of protection is also a vital step for an inventor.
Conversely, the longer the inventor takes before obtaining professional advice the more expensive that advice is likely to become. For example, an hour or so talking to an adviser can help the inventor decide whether his product, process or idea is patentable and, if so, whether it is worth patenting or not.
Even if a product is not patentable, it is important to carry out a patent search in the countries in which the inventor intends to market his product, to ensure that it does not infringe a patent that has already been filed by someone else. Failure to do this could result in the inventor having to pull his product off the market, engage in expensive litigation or pay royalties to the patent owner.
Where the concept is patentable, the adviser can assist the inventor in his decision whether to patent or not. In some cases, even though the concept may be patentable, it may not be worth the expense of seeking protection. Instead the inventor may be better off putting his money and effort into getting the concept into the market in order to obtain a competitive advantage over others. Even if others do copy the inventor’s idea, they will still be up to six months behind the inventor.
And, even though a product may not be patentable, the design of the product will usually be subject to copyright (and possibly also design rights), so that any attempt to copy a product or reverse engineer it will constitute copyright infringement.
Early professional advice will also be valuable in helping the inventor determine:
- the appropriate corporate structure through which to exploit his concept; and
- the process by which to ensure that any other person who might have an interest in the IP (e.g. employees, contractors, suppliers and shareholders) surrenders or transfers that interest to the inventor or his company.
Failure to take advice at this stage can be costly, especially if payments have to be made to secure ownership of the IP or if the inventor inadvertently infringes the rights of a competitor.