When it comes to doing business as a small company these days, the internet-based world we live in today is a double-edged sword. Because of the Internet, small companies are able to reach a much wider audience than they were even twenty years ago. New markets open up across the country, or even on the other side of the world. Selling internationally used to be considered far beyond any small business’s means, but today, with online marketing and digital storefronts, it’s a regular occurrence.
Small businesses can still be taking a huge risk when dealing in international waters, however, and those waters are often filled with sharks who are just waiting to pounce on a good idea and capitalize on it. Suddenly, the small business is forced to deal with unwanted competition, particularly in other countries, where the law is a bit foggier. How can these small businesses protect their intellectual property?
Fortunately, there are a few tools businesses can use when they have a breakthrough idea that is likely to be popular across the globe.
Provisional Patents and International Patents
One of the first steps any business should take, large or small, is to register their new product at their country’s patent office. A provisional patent in the United States will cover the invention for a year and will need to be converted to a non-provisional patent when that time has passed. It is a good first step, however, as a provisional patent is much less expensive and can expedite the patent application process once the design has been refined.
When filing a provisional patent, make sure to include every possible iteration you can conceive of for your device. Even a single additional slit in the design that has not been recorded in the provisional patent will mean that your device must go back to the end of the line when you apply for a non-provisional patent.
Unfortunately, even a non-provisional patent is only legally binding within the country that issued it. If you have any intention of marketing, manufacturing, or selling your product in any other countries, a patent from each of those countries would be advisable. With additional expenses from translation and filing in each country, the costs can add up, so small businesses will need to be very selective about where they file, but in the end, it can save them time and money. In some cases, if countries exceed the timeframe for applying for international patent protection, they could even be prevented from filing a patent for their own invention.
When a business’s big idea is a creative work, the law works a little bit differently. In the United States, just the creation of an original work automatically assigns it with basic copyrights once it is fixed in a tangible form, even if that form is a scribbled version on the back of a napkin. Filing a copyright registration at the copyright application permits you, specifically, to claim ownership of that work publicly, however.
While there is technically no such thing as an “international copyright” that covers your intellectual property in every single country, most countries do provide international copyright protection under international treaties and conventions. If there are particular countries where a company is seeking copyright, they should determine exactly how that country handles international copyright protection. Depending on the country, this may be based on the facts that exist at the time of first publication, so it is best to get this information as soon after publishing as possible, and preferably before it is published anywhere at all.
When you are discussing your idea with anyone, a non-disclosure agreement is probably a good idea. Manufacturers, distributors, and marketers are all given sensitive information that should be protected. In order to keep your idea secure, having a comprehensive non-disclosure agreement in place can be vital.
Just like most legal matters, international non-disclosure agreements can be complicated. Each party involved will likely want its own country’s laws to govern the agreement; chances are that the party with the greater bargaining power will get their way. Sometimes, however, a neutral site can be agreed upon. Should a dispute arise, and one party be granted a monetary judgment, however, it will likely be necessary to take the judgment to the losing party’s country in order to have it enforced. For more detailed information, contact an attorney who is well versed in international and family law.
By: Dennis Hung