In Europe and in the world, the modern economy is based on
the free flow of knowledge, goods and products.
The intellectual property is an exception as it is legitimate
to reserve a situation which is privileged towards the one who dares
to innovate, to create instead of
having the work done by someone and take advantage of it.
This logic leads to different forms of protection being defined
by industrial property titles.
These kinds of intellectual properties are used to protect several types of
creation and innovation. We will look over the tool box
that the code of intellectual property offers.
This tool box contains different objects that we are going to analyse
in a few more details.
You know about the patent, protecting your invention,
so a technical solution to a technical issue,
the design right allows you to protect the design of the product,
the trademark protects a distinguishing feature,
and the copyright protects intellectual works,
any type of creation.
But you must be aware of this:
nothing makes it possible to seize an idea, a notion.
Let's start with the trademark.
You all know that trademark protects
a distinguishing feature or service.
A trademark can have many shapes;
it can be a creative word like 'Crunch' for a chocolate brand, a noun whose
meaning is changed, like 'Apple' for example in computing,
it can be an acronym like HEC, a number like 501 for clothes,
a logo, like a comma for Nike, or even the shape of a product, for
example the shape of Orangina bottles, or of Courte Paille restaurants, which
make it possible to identify this restaurant among all the others.
A trademark is protected for ten years and can be indefinitely extended,
some trademarks have been protected for more than a hundred years.
A trademark protects a product or products or services
indefinitely. A 'Mont Blanc'
trademark can be registered for pens for example, it doesn't
prohibit someone from using it for a chesnut cream particularly if they
registered this trademark themselves for other products and services.
How much does registering a trademark cost?
In France it costs a few hundred euros, around 200 euros for registering
online for three categories, protection
abroad will be more expensive, a few thousand euros.
The second type of protection is the design right
which protects the esthetic shape of the product, its design.
The design right has been protected for 25 years in France,
it is used for decorative articles which may be industrial or
intended for fashion for example.
Even in the industrial field, design
esthetics are an important aspect,
you can obviously see it in the 'Apple' products for example, so for a company
with an induswtrial activity this right musn't be ignored.
Copyright is another type of protection which protects widely
any intellectual work provided
that this intellectual work is original, stands out,
in other words it must carry the trace of its author's personality.
What can be protected by copyright are: literary or scientific texts,
cinematic or audiovisual works, MOOCs, photographies, computer programms -
for computer programms, not only the
code will be protected but also its preparatory design documentation,
its graphic interfaces, its user's manuals, etc.
Beware, copyright doesn't protect
underlying ideas but simply their formalisation.
The protection lasts 70 years from the author's death, it is a little bit less
for softwares, 50 years after the first
distribution but it is very comfortable. The advantage
of copyright is that it doesn't require any preliminary registration.
It is gained from the design of the work, however it is recommanded
to make a registreation to prove the nature
and date of creation, it can be a registration at a bailiff's,
at LOGITAS or APP if it is a software,
it can be a sealed envelope to the French engineers and scientists,
it reinforces the ability to claim this copyright.
Finally, the patent.
A patent protects an invention,
in other words it is a technical solution to a technical issue.
There are two parts in a patent.
A first part called description which
must describe the invention in a clear and complete way so that
the invention can be achievable according to an example of realisation.
A prototype is not necessary for this,
but you must be able to describe all the characteristics that will allow
a person working on this field to make this invention.
The second part is the most important,
from a legal point of view, it is claims.
Claims precisely define the legal effect of the protection.
An invention must be new to be patentable.
It means that it musn't be already known and found in a non-confidential
accessible document.
So remember to register your patent application before you
even present your invention to a non-confidential third party.
It is important for the invention to meet the inventive activity criteria.
In other words, it musn't obviously
result from the state of the art.
And finally, as I said,
it must be described in a clear and complete way.
It is not about registering a patent application only based on
a simple notion whose characterisation
hasn't been realised yet to be achievable.
Softwares are a particular case.
Software patents, or to speak in
juridical terms, inventions made by computers, was much
written about and opened big debates.
You should know that jurisprudence has now been stabalised and
accepts a computer programm to be patentable as long as it
offers a technical solution to a technical issue.
For example, if it is a computer programme for compression and
decompression of datas solving
technical issues; the size of a file or the necessary
bandwidth to transfer a file.
It led to several hundreds of patents which
now match the MPEG standards.
However, business methods, computer programms which are not conceptual
and abstract are not patentable.
Since a few years, the United States have fallen into line with the
European position by denying the validity of patents of
intellectual methods in its current form.
So this musn't be forgotten by start ups,
in particular when they develop projects
with an important part of computer development.
So, how can you identify if it is patentable or not?
We will give you more details in the next unit,
but you should already know that the best way to answer this question is
to look for similar patents that have already been published.
To do this you can access data bases for free - Epoline, Espacenet -
there is also a very good Google Patents database where you can look for
patents which are close to your project and determine what makes you different
compared to what is described and taught in these prior documents.
This first exercise will allow you to see what patents are
registered in your field of activity, who registers them, what they
are about and to better understand the importance of the technical choices
that you made to differ from what already exists.
This distinction helps you define
what would be the subject of the patent and write a patent application,
which is a relatively technical exercise and deserves
to be guided by a patent agent.
This leads to a first registration in France and then to an extension
abroad the following year.
Here are a few words about the savoir-faire.
Savoir-faire is about skills.
Savoir-faire is defined as a substential and formalised group of
secret knowledge.
If you want to boast savoir-faire, be organised and keep your
knowledge in a laboratory notebook,
in a report that makes it possible to identify it and to boast
it in agreements with third parties.
How much does it cost?
A trademark is a few hundreds of euros, a patent a few thousands of euros,
typically, a French patent registration costs around 4,000 euros,
300 euros being taxes, design right is also a few hundreds of euros,
the expansion of budgets is meaningful, but
it is not completely deterrent, even for a start up.
To summarise, to enter the property policy of industrial
policy, you should know how to determine what your competing
advantage is. Is it the name, the design or technology?
Define the best industrial property mix in order to protect
your project efficiently without spending too much money.
And, above all, anticipate your deployment on the market
abroad in order to built strong industrial property
rights from the beginning of your company.
Romain BeaumeChargé Mission chaire MIX
Etienne KriegerAffiliate Professor
