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How To Protect My Idea?

It is a concern for many entrepreneurs that their ideas will be copied upon being revealed. Hence the question, "If I have an idea, how do I protect it?"

In order to be eligible for protection under Intellectual Property ("IP") Laws, the idea must first be materialised. It is not protectable if it is merely a vague and hypothetical concept. For example, Entrepreneur Adam comes up with a mere idea / suggestion of time travel machine which capable of travelling to the past and future, is not protectable by IP Laws. He must sets out the method and mechanism of building the time travel machine in order to obtain protection under IP Laws. "So how could IP Laws protect my time machine if I successfully invented one?" Adam asked. Patent To protect the technology behind the time machine, it is necessary to file one or, most likely, multiple patent applications. It is to prevent someone from infringing and copying the technology. Adam may need huge investment to fund the mass production of time travel machine and operation of his startup. The patent applications could be used to increase investors' confidence in that the technologies are protected. On the other hand, Adam does not have to worry that the technology will be "hijacked" by the investors during the pitching sessions. Upon successful grant of patent, Adam will enjoy 20 years of exclusive right on his technologies. Some entrepreneurs may wish to observe the response of investors or market before proceeding with patent filings. On this, it is noteworthy that one of the requirements for patent application is novelty. An invention is not considered novel if it is known to the public before its filing date. Although some countries have grace period of six months or one year to satisfy the novelty requirement, Adam should file the patent application as soon as possible, or ideally, before the disclosure to the public. Otherwise, the patent application may fail due to lack of novelty. Further, Adam should plan his international patent registration at the very beginning stage. Since many countries adopt the abovementioned novelty policy, Adam should make arrangement to file the patent applications in all desired countries within one year from first filing date. This is to secure the priority date and novelty of Adam’s patent application. Priority date is known as the first filing date of one patent application, for the purpose of examining the novelty and inventive step of one invention. If it is not possible to file all the foreign patent applications within one year, he may consider the application route under Patent Cooperation Treaty (PCT). One of the biggest advantage of PCT application route is that Adam will have a total of 30 months from priority date to file his patent applications in all the member states of PCT. However, Adam should take note that not all countries are member states of PCT. Industrial Design A time machine may have a futuristic exterior visual design. Adam may protect the shape and configuration, and pattern and ornamentation of the product by registering pursuant to the Industrial Design Laws. This is to protect the exterior design instead of its function. Adam will also enjoy 15 to 25 years of exclusive rights on his design upon successful registration. It should be pointed out that some countries may have lesser terms of protection for industrial design. Similar to Patent, Adam should endeavour to apply for industrial design protection before disclosure. This is also to ensure it meets with the novelty requirement of Industrial Design Laws. Copyright Computer software or applications will definitely an important aspect for such an advanced technology. The source code is protectable as copyright. It is eligible for protection upon its first publication. Some countries, like Malaysia provides voluntary notification system for copyright. In the circumstances, Adam may register his ownership on the computer software of the time travel machine with the Copyright Office. Trademark Every products and services need a trademark for identification and marketing purposes. Adam will certainly create a catchy and distinctive trademark for his time travel machine. In order to prevent the trademark being hijacked or copied by infringer, Adam should register the trademark immediately. For this purpose, Adam should take the following into consideration while designing the trademark.

It should consists of invented words. It should not have any direct reference to the quality or characteristic of the time travel machine. For example, Adam should not use “Time Travel Machine” as the trademark. In fact, he should try using words not relevant to the product as trademark.It should be distinctive where those innocent traders would not usually intend to use it in the course of trade. It should not be confusingly or deceptively similar with other trademarks. For this purpose, it is advisable for Adam to conduct a pre-filing search in the database of trademark office. Trade Secret Some entrepreneurs may choose not to disclose their technology and kept it as a trade secret. This is also one of the approaches to protect the technology as opposed to filing patent application. This is because the applicant is required to disclose the technology entirely for the purpose of patent application. However, unlike patent, there is no avenue of statutory registration system or statutory protection period for trade secret. Therefore, a watertight mechanism or system is required to keep technology as a secret. As long as they are kept secret, it could be protected forever. However, once the technology is disclosed by intentional leak or by accident, it would be very difficult to succeed in the infringement proceedings against the infringers. There are indeed many successful examples of trade secret protection. For example, the recipe of Coca-Cola and KFC original recipe are well kept secret until today.

As a conclusion, an idea merely at conceptual / imagination stage is not good enough for protection under IP Laws. The idea should be materialised, reduced into substantive form.

Written By, Lawrence Tan Registered Trademark, Patent & Design Agent Email:

Disclaimer: The information above is for general understanding only and is not intended to constitute legal advice. Readers are advised to consult with the appropriate legal advisors in the respective jurisdiction

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