This is one of the great fears of the creator: to be robbed of his idea. It is not always possible to obtain an industrial property right or to be protected by copyright. In this case, only one solution: to preserve its secret. Last updated: February 2013
Business creators are full of ideas. Product ideas, packaging, marketing methods and many more. At the same time, the entrepreneur who seeks funding, partners or opportunities must expose his ideas and convince them of their economic potential. How can we ensure that these people do not take the idea or do not disseminate it simply through negligence? There is no legal mechanism for the protection of ideas or concepts, but there are still solutions. To do this, you need to proceed in stages:
Step 1: Assess my idea - What is the originality of my idea: to what extent is it innovative, how does it differ from the knowledge available to an informed public? Is it: can it be immediately implemented or should it be further studied? - What is its economic potential: what added value does it bring to the process to which it applies? To what extent is it useful, or to what extent does it improve the competitive situation of the person who can exploit it? - Who should I protect myself: Who can know, directly or indirectly, my Idea, which may be of use to it, or which may injure me?
This assessment will enable you to determine, on the one hand, the type of protection adequate, and on the other hand, the budget that it is reasonable to allocate to this protection.
Second step: can I obtain an industrial property title? Industrial property rights allow a monopoly of exploitation in a given territory for a given period of time to be enjoyed by means of a publication.
- Protection by a patent of invention The patent allows to protect, in France, on the territory of the European Union or internationally, for 20 years, any innovation of product or process, provided that this is cumulatively, Conforming to public order and morality, inventive, new and capable of application in industry or in agriculture. Attention, all innovations are not protected by a patent. Thus, scientific theories, mathematical methods, aesthetic creations, computer programs, presentations of information or teaching aids are not patentable.
- Design protection Designs shall protect the appearance, that is, the lines, contours, colors, shape, texture or materials of a product or part of this one. To be protected, the creation must be apparent, visible and concrete and materially achievable. It must be new and original and have its own character. The protection is granted for a period of five years, renewable four times for the same period, ie a maximum of 25 years.
- Protection by trademarks The trademarks do not protect the products but the image that can be attached to a product or a service They can take various aspects: texts, figures, drawings, combinations of colors, or even odors. To be protected, trademarks must be distinctive, lawful and available. Unlike patents and designs, trademark protection can be unlimited, provided that royalties are paid. Again, the monopoly granted is territorially delimited.
Step 3: Can I be protected by copyright? Copyright is not an industrial property right. It has the peculiarity of being composed, on the one hand, of a moral right attached to the person and inalienable, on the other hand, of a patrimonial right which can be assigned or conceded. The patrimonial right belongs to the author for the entire duration of his life and then to his heirs for the seventy years following his death.
Software, the subject of patentability is currently under discussion, is copyright.
4th step: how to protect the secret of my idea Many ideas, whose economic value is certain, can not be protected by an intellectual property right. This is particularly true of certain manufacturing processes or know-how. In other cases, the contractor does not have the resources to meet the high costs of filing a patent application. Sometimes, the entrepreneur has an interest in preserving the secret of his invention. In such cases, only the preservation of the secrecy of the idea or invention is effective.
This preservation must take place at each stage of the development of the idea and must lead to linking all the interlocutors of the innovative company. It leads to: - the preparation of a technical dossier in which the secret part, which is to be disclosed only in return for remuneration and guarantees, should be identified, - the signature With the employees of the company, a confidentiality agreement valid for the duration of the contract as a result of its resolution and the establishment of an internal control system, - the systematic signature of a confidentiality agreement with Any partner, even potential. This confidentiality agreement must impose the preservation of secrecy, including, and especially, in the event of breach of contract or breach of contract.
When the talks lead to an agreement involving the disclosure of the idea or invention, it is imperative that its partner be strictly circumscribed in the communication of secrecy to its own collaborators or partners and to impose on them the preservation Of secrecy.
Finally, in certain technology transfer or know-how operations, a mechanism for controlling the secrecy of the secrecy, possibly by a third party, must be imperatively put in place.
In conclusion Territorial protection by publication or protection by secrecy, the choice, when not ordered by the impossibility of benefiting from an industrial property right, must be done after careful evaluation of the idea that, Is meant to protect.
Above all, at a time when competition and markets are global, it is important to determine the territories on which this protection must be provided. Patent law, trademark law and design law make it possible, thanks to the rules of the European Union or international treaties, to have a very wide territorial protection. But you have to think about it in time and this protection has a cost.
The preservation of secrecy by confidentiality agreements must always be considered on a transnational level.
Attention is drawn to the fact that the Agreement on Trade-Related Aspects of Intellectual Property Rights in the WTO, which protects undisclosed information, does not preclude foreign public policy provisions which, for example, , Would limit the effect over time of the prohibitions on disclosure of secrecy.
From this perspective, contracts for the preservation or concession of ideas are delicate to negotiate, draft and follow. It is therefore important to find genuinely appropriate solutions that take into account the legal and cultural environment of the partner and provide, in addition to the applicable law, efficient, expeditious and cost-effective dispute resolution mechanisms.
Business creators are full of ideas. Product ideas, packaging, marketing methods and many more. At the same time, the entrepreneur who seeks funding, partners or opportunities must expose his ideas and convince them of their economic potential. How can we ensure that these people do not take the idea or do not disseminate it simply through negligence? There is no legal mechanism for the protection of ideas or concepts, but there are still solutions. To do this, you need to proceed in stages:
Step 1: Assess my idea - What is the originality of my idea: to what extent is it innovative, how does it differ from the knowledge available to an informed public? Is it: can it be immediately implemented or should it be further studied? - What is its economic potential: what added value does it bring to the process to which it applies? To what extent is it useful, or to what extent does it improve the competitive situation of the person who can exploit it? - Who should I protect myself: Who can know, directly or indirectly, my Idea, which may be of use to it, or which may injure me?
This assessment will enable you to determine, on the one hand, the type of protection adequate, and on the other hand, the budget that it is reasonable to allocate to this protection.
Second step: can I obtain an industrial property title? Industrial property rights allow a monopoly of exploitation in a given territory for a given period of time to be enjoyed by means of a publication.
- Protection by a patent of invention The patent allows to protect, in France, on the territory of the European Union or internationally, for 20 years, any innovation of product or process, provided that this is cumulatively, Conforming to public order and morality, inventive, new and capable of application in industry or in agriculture. Attention, all innovations are not protected by a patent. Thus, scientific theories, mathematical methods, aesthetic creations, computer programs, presentations of information or teaching aids are not patentable.
- Design protection Designs shall protect the appearance, that is, the lines, contours, colors, shape, texture or materials of a product or part of this one. To be protected, the creation must be apparent, visible and concrete and materially achievable. It must be new and original and have its own character. The protection is granted for a period of five years, renewable four times for the same period, ie a maximum of 25 years.
- Protection by trademarks The trademarks do not protect the products but the image that can be attached to a product or a service They can take various aspects: texts, figures, drawings, combinations of colors, or even odors. To be protected, trademarks must be distinctive, lawful and available. Unlike patents and designs, trademark protection can be unlimited, provided that royalties are paid. Again, the monopoly granted is territorially delimited.
Step 3: Can I be protected by copyright? Copyright is not an industrial property right. It has the peculiarity of being composed, on the one hand, of a moral right attached to the person and inalienable, on the other hand, of a patrimonial right which can be assigned or conceded. The patrimonial right belongs to the author for the entire duration of his life and then to his heirs for the seventy years following his death.
Software, the subject of patentability is currently under discussion, is copyright.
4th step: how to protect the secret of my idea Many ideas, whose economic value is certain, can not be protected by an intellectual property right. This is particularly true of certain manufacturing processes or know-how. In other cases, the contractor does not have the resources to meet the high costs of filing a patent application. Sometimes, the entrepreneur has an interest in preserving the secret of his invention. In such cases, only the preservation of the secrecy of the idea or invention is effective.
This preservation must take place at each stage of the development of the idea and must lead to linking all the interlocutors of the innovative company. It leads to: - the preparation of a technical dossier in which the secret part, which is to be disclosed only in return for remuneration and guarantees, should be identified, - the signature With the employees of the company, a confidentiality agreement valid for the duration of the contract as a result of its resolution and the establishment of an internal control system, - the systematic signature of a confidentiality agreement with Any partner, even potential. This confidentiality agreement must impose the preservation of secrecy, including, and especially, in the event of breach of contract or breach of contract.
When the talks lead to an agreement involving the disclosure of the idea or invention, it is imperative that its partner be strictly circumscribed in the communication of secrecy to its own collaborators or partners and to impose on them the preservation Of secrecy.
Finally, in certain technology transfer or know-how operations, a mechanism for controlling the secrecy of the secrecy, possibly by a third party, must be imperatively put in place.
In conclusion Territorial protection by publication or protection by secrecy, the choice, when not ordered by the impossibility of benefiting from an industrial property right, must be done after careful evaluation of the idea that, Is meant to protect.
Above all, at a time when competition and markets are global, it is important to determine the territories on which this protection must be provided. Patent law, trademark law and design law make it possible, thanks to the rules of the European Union or international treaties, to have a very wide territorial protection. But you have to think about it in time and this protection has a cost.
The preservation of secrecy by confidentiality agreements must always be considered on a transnational level.
Attention is drawn to the fact that the Agreement on Trade-Related Aspects of Intellectual Property Rights in the WTO, which protects undisclosed information, does not preclude foreign public policy provisions which, for example, , Would limit the effect over time of the prohibitions on disclosure of secrecy.
From this perspective, contracts for the preservation or concession of ideas are delicate to negotiate, draft and follow. It is therefore important to find genuinely appropriate solutions that take into account the legal and cultural environment of the partner and provide, in addition to the applicable law, efficient, expeditious and cost-effective dispute resolution mechanisms.
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