Chronicle Editor
Aleck Ncube
GENERALLY, an “innovation” is developing a new idea and putting it into practice. Through innovation an enterprise seeks to deliver unique new value to its customers.
There are many players involved in facilitating the market success of an innovation, the effective use of the tools of Intellectual Property (IP) plays an important role in reducing risk for the players involved, who may then be able to reap acceptable returns for their participation in the process.
IP plays an important role in facilitating the process of taking innovative technology to the market place. At the same time, IP plays a major role in enhancing competitiveness of technology-based enterprises, whether such enterprises are commercialising new or improved products or providing service on the basis of a new or improved technology.
For most technology-based enterprises, a successful invention results in a more efficient way of doing things or in a new commercially viable product. The improved profitability of the enterprise is the outcome of added value that underpins a bigger stream of revenue or higher productivity.
Perception of innovative ideas
Whether an enterprise’s decision to innovate has been influenced by the overall business strategy (e.g. growth through innovation) or a reaction to developments in the market-place, it is imperative that an innovative idea must be treated as a secret if an enterprise wishes to get potential commercial benefits from the idea (ie the information surrounding the creation of the idea must be protected carefully as a trade secret).
It should be noted that not all commercially viable ideas can be or will be patented, hence the importance of treating ideas as trade secret, in particular at the inception stage.
Empirical evidence indicates that generally small and medium-sized enterprises (SMEs) are more inclined to use trade secrets rather than patents as a form of protecting their inventions to stay competitive.
The main reasons given by SMEs for shying away from patenting their inventions include high costs and complexity of the patent system.
In some cases, while patenting-related costs and complexity of the patenting process (especially relating to “prior art” search and to the drafting of patent claims) may be seen to hamper innovation, (particularly, in cash “strapped” SMEs) it is equally true that if used strategically, (ie in a patent-friendly business environment for SMEs or in partnership with others) patents can become a dependable source of new, additional or higher revenue for SMEs.
For an idea that may result in a patentable invention, the ultimate choice between the use of either the trade secret route or the patent route for protecting it should be seen as a strategic business decision that should be taken only at a later stage of its development when all the requirements of patentability are met, namely, statutory subject matter, novelty, inventive step/non-obviousness, capable of industrial application, and adequate disclosure.
At that stage, the choice would depend on the nature of the invention, its business potential, the nature of competition, the possibility of its independent creation by competitors and the ability of competitors to reverse engineer it easily from the product developed by using it.
It should, however, be pointed out that whatever the ultimate decision, initially it must be protected as a trade secret so that, later on a part of it may be patented and the rest of it may still remain as the associated trade secret and know-how, or tacit knowledge owned by individuals that are associated with the patent.
The information contained in existing patent documents (patent information) plays an important role in the conception, screening and development of an idea. Such information can provide useful insight into whether an idea is new or not (state-of-the art) and whether to proceed further in developing an idea. Furthermore, proper analysis of patent information may provide an insight into the strategy of potential competitors and about technology trends.
Research and development stage
Several indicators have been used to measure the efforts of an enterprise in undertaking research on and developing innovative ideas. These include, expenditure on research and development (R&D), information on innovation, total sales, firm size, innovation strategies, etc.
These indicators are directly or sometimes indirectly influenced by IP. The IP tools used during the “conception of an innovative idea” stage continues to be relevant also during this stage. Thus, trade secret continues to be relevant, especially if the enterprise is yet to decide on whether to file a patent application. Keeping trade secrets continues to be relevant during the entire R&D phase, as one would not want the competitors to ever have access to vital information. If used by such competitors it would result in the erosion of a competitive advantage, derived from the final product.
During this period, researchers should periodically consult several sources of information that would provide input for the success of their project. Patent documents continue to be a relevant source of information that is often grossly underutilised. The European Patent Office (EPO) estimates that 70 percent of the information in patent documents is not available elsewhere, and with more than two million patents granted annually around the globe it does not take a “rocket scientist” to realise the wealth of information available in patent documents.
Patent documents provide useful information on the state-of the art, which would enable an enterprise to avoid unnecessary wastage of resources, in terms of money and time, during the R & D process, thereby hopefully reducing the normally high R & D costs. Patent information can also provide useful information, which can lead to product improvement or to design-around inventions, which may help to “short-circuit” the lengthy time frame often required to take a new product to the market.
Unfortunately, for their business needs, many SMEs do not use patent documents as a source of competitive intelligence. SMEs in Zimbabwe should be made aware of and be equipped to use business, legal, and technical information contained in patent documents, which is in the public domain to come up with innovative product, which have been adapted to local conditions.
Once an enterprise decides to rely on a utility model or a patent to protect its output of research and development, it must initiate the required process, e.g., file a utility model/patent application. Such a move would facilitate the establishment of filing date for determining the priority date and for claiming exclusive rights over the output even before a patent is granted.
Most R & D results in both functional and aesthetic improvements. For protecting and leveraging new or original designs, which are solely judged by the eye, SMEs should proceed with the industrial design registration process at the national/regional design office set up under the relevant national/regional design law.
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