A feature in yesterday's IP Marketing E-News (for details click here) asks whether a marketing strategy can be considered protectable as intellectual property. This is a depressingly familiar question for Europeans, who are terrified that the first to conceive a new business technique might be able to monopolise it with disastrous consequences for competition (consider what might have happened if, in the earliest and mainly passive days of the internet, the strategy of interactive marketing and online sale were patented). Americans are often also depressed by the question but for quite another reason -- they can't see why something that is truly new and innovative should be deprived of protection just because it happens to be a business method. The article, being of American origin, reads in part:
Copyright provides only limited, formal protection -- and confidentiality (even assuming that it could be initially preserved, would be unlikely to survive many business transactional uses before it became the preserve of the market analyst and the competition authorities). with patent protection being either unavailable or of dubious utility, that leaves the trade mark and marketing itself as the best form of protection. Get on the market first with a new marketing idea and work hard to remain one step ahead -- and you may find the rewards for investing in the market itself are greater than the rewards for trying to fence it in with IP rights.
"To clarify, patents can be granted on any of the following:
Utility patents, which may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
Design patents, which may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
Plant patents, which may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
Assuming your idea falls into any one of these three categories, then it may be patentable. If this is the case, then you should discuss this possibility with your attorney. However, if your idea does not fall into any of these categories, then it may still be protectable by other means.
First of all, it is always a good idea to walk into any such meeting with a well-drafted nondisclosure agreement in hand. An intellectual property attorney should be able to advise you on the terms and conditions that need to be in such an agreement to protect the information you intend to disclose to the other company.
Second of all, since the idea you seek to protect is a marketing strategy, the possibility exists that it may be protectable by copyright law. While ideas themselves are not protectable, certain aspects of your strategy may be protectable by copyright law. An intellectual property attorney in your jurisdiction with expertise in copyright law should be in a position to advise you as to whether or not your strategy is in fact protectable by copyright law and, if so, the steps you should take to protect it".
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