Patent protected?
Applying for a patent is not for the fainthearted. It's complex and time consuming, and like any process involving lawyers, it's not cheap. But hassle and expense aside, protecting your intellectual property could be the best business decision you will ever make, says Devanand Creace, associate at Keltie, a partnership of global patent and trademark attorneys.
"I'll never forget one case of a packaging machinery firm that went to a trade show and saw an exact copy of its new machine on one of the other stands at half the price. There was absolutely nothing it could do: it couldn't prove that its design had been copied; it hadn't patented anything - or even registered the design. It's every company's worst nightmare."
As Tate & Lyle has discovered, a patent cannot prevent rivals from copying you - indeed, in some markets, says chief executive Iain Ferguson, a patent application "is regarded almost like an instruction book". The difference is that if your intellectual property is protected by law, you at least have some legal recourse if someone tries to steal it.
BLISSFUL IGNORANCE
Surprisingly, perhaps, many food manufacturers remain blissfully ignorant about IP, observes Creace [pictured above]. "Drinks and packaging companies tend to be more IP aware, as, increasingly, do companies in nutraceuticals, where we're seeing a blurring of the boundaries with pharmaceuticals and cosmetics." Companies in this space are also quick to cash in on the marketing opportunities. If you've got some IP, flaunt it, says Creace. Nothing impresses punters more than 'patent-pending' technology when it comes to health and beauty. If something is 'patent-protected', it's far more likely to work, right?
It's also a fact that most businesses don't examine other companies' patents in great detail - which is just as well, given that many are so badly drafted, says Creace.
IP and plant extracts
As a rough guide, trade marks cover brands and names, while designs cover logos and the appearance of products, and patents cover technical innovations.
While you can patent a novel compound you've developed in the lab, for example, you can't discover a new plant in the depths of the Amazonian rainforest and patent it. However, you can patent an extraction or purification process that will ensure your ingredient is standardised, bioavailable and clinically effective.
In the world of functional ingredients, patent protection is something investors look at immediately, says Creace. Take appetite-busting succulent hoodia. Given that anyone can crush it into a tablet and flog it to slimmers losing their battle with the bulge, you might wonder why Unilever has spent a small fortune building up a suite of patents around the isolation and extraction of its active ingredient (P57).
But it is precisely because the market is awash with so much generic dross that Unilever's investment makes sense, says Creace. Even the most credulous punters will soon come to realise that only products containing P57 are likely to deliver. In other words, if you want a guaranteed bang for your buck, you'll buy the 'patent-protected' Unilever product.
Sometimes it is not always obvious how best to protect the fruits of your creative endeavours, however. Take Coca-Cola. The recipe from the world's most famous soft drink is only known to a handful of people. A tiff at the top and the secret formula - a classic 'trade secret' - could technically get into the wrong hands. As the recipe has not been patented or published, however, proving breach of confidence on the part of a disgruntled former executive would actually be pretty difficult, says Creace.
Applying for a patent
The first step in the patent application process is finding out whether you could be infringing someone else's patent, says Creace. "Searching and analysis of competitor IP is critical."
After that, seek legal advice, he says. Most patent attorneys will offer free advice in the first instance so you can decide whether it's worth going ahead, he adds. "Buying a 20-year exclusivity period doesn't come cheap, so you need to know whether your potential profit will warrant the expense."
Many companies may also be unaware that if they talk to the press about their innovation before a patent application has been filed, they can invalidate the application, he warns.
"You also need to allow for the fact that products and brands develop over time, often into unrelated areas. A good patent attorney will make sure you have considered not just what you are doing now, but what you might be doing in future."
