Safeguarding Your Investment in Convergent Content
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Sep 26, 2024
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About This Presentation
These are the slides of an online talk that I gave on Wednesday, 25 Sept 2024 to the participants of the Convergent Content Scaler programme.
This is a 12-week accelerator-style programme which is operated by the Menai Science Park on Anglesey and Tramshed Tech in South Wales to transform recently...
Slide Content
www.4-5.co.uk www.4-5.co.uk
Safeguarding Investment
in Convergent Content
Jane Lambert
25 Sep 2024 10:00 - 12:00
Safeguarding Investment
in Convergent Content
Jane Lambert
25 Sep 2024 10:00 - 12:00
www.4-5.co.uk
What is Convergent Content?
My Invitation to give this talk listed the following examples:
●Digital media and entertainment
●Interactive arts and design
●Augmented reality and virtual reality
●Creative software and tools
●Gaming and gamification
●Artificial intelligence in creative applications.
Each of those items are valuable assets. As they are creations of the mind they
are “intellectual assets”. Their value will diminish if they are exploited without
the owner’s permission. The rights that prevent that from happening are
known collectively as “intellectual property.”
What is Convergent Content?
My Invitation to give this talk listed the following examples:
●Digital media and entertainment
●Interactive arts and design
●Augmented reality and virtual reality
●Creative software and tools
●Gaming and gamification
●Artificial intelligence in creative applications.
Each of those items are valuable assets. As they are creations of the mind they
are “intellectual assets”. Their value will diminish if they are exploited without
the owner’s permission. The rights that prevent that from happening are
known collectively as “intellectual property.”
www.4-5.co.uk
Intellectual Property
“Intellectual property” (“IP”) is the collective name for the rights that protect
investment in “intellectual assets”.
Examples of IP rights (“IPR”) include:
▪patents for new inventions
▪trade marks for brands
▪copyrights for works of visual arts and literature
▪rights in performances for performing arts
▪registered designs for new designs having individual character.
Important not to confuse IA with IP. An invention, novel or website is an
intellectual asset but the right that prevents its unauthorized manufacture,
sale, marketing, importation or use is an intellectual property right.
Intellectual Property
“Intellectual property” (“IP”) is the collective name for the rights that protect
investment in “intellectual assets”.
Examples of IP rights (“IPR”) include:
▪patents for new inventions
▪trade marks for brands
▪copyrights for works of visual arts and literature
▪rights in performances for performing arts
▪registered designs for new designs having individual character.
Important not to confuse IA with IP. An invention, novel or website is an
intellectual asset but the right that prevents its unauthorized manufacture,
sale, marketing, importation or use is an intellectual property right.
www.4-5.co.uk
Why IP is Important for Startups
My invitation to speak stated that my audience would consist of founders and
innovators looking for Pre-seed to Series A funding.
Angels and venture capitalists require an assurance that their investment is as
safe as it possibly can be.
They recognize that legal services do not come cheap and that entrepreneurs
have many conflicting priorities.
A good way to persuade them is to include the cost of obtaining and enforcing
IPR into their business plans.
Why IP is Important for Startups
My invitation to speak stated that my audience would consist of founders and
innovators looking for Pre-seed to Series A funding.
Angels and venture capitalists require an assurance that their investment is as
safe as it possibly can be.
They recognize that legal services do not come cheap and that entrepreneurs
have many conflicting priorities.
A good way to persuade them is to include the cost of obtaining and enforcing
IPR into their business plans.
www.4-5.co.uk
The IP Toolkit
Intellectual assets are creations of the mind that confer on its owners a
competitive advantage over others in its industry..
IA can be divided into the following categories:
▪Brands
▪Designs
▪Technology
▪Works of art and literature.
Often IA can be protected by more than one form of IP.
The most comprehensive protection is not necessarily the best because it may
be too expensive to obtain or enforce. The challenge for the business owner is
to select the optimum IP protection for his or her business at a particular time.
.
The IP Toolkit
Intellectual assets are creations of the mind that confer on its owners a
competitive advantage over others in its industry..
IA can be divided into the following categories:
▪Brands
▪Designs
▪Technology
▪Works of art and literature.
Often IA can be protected by more than one form of IP.
The most comprehensive protection is not necessarily the best because it may
be too expensive to obtain or enforce. The challenge for the business owner is
to select the optimum IP protection for his or her business at a particular time.
.
www.4-5.co.uk
The IP Toolkit
▪Brands: protected by registered trade marks but also by the common law
(judge made) action of passing off and geographical indications.
▪Designs: new designs having individual character are protected by design
registration, supplemental unregistered designs and in some circumstances
copyright. Functional designs are protected by unregistered design rights,
▪Technology: new products and processes can be protected by patents or
by the law of confidence as trade secrets. New plant varieties are
protected by plant breeders’ rights. Semiconductor topographies are
protected by modified unregistered design rights. Computer programs are
protected by copyright and the law of confidence.
▪Works of Art and Literature: visual arts and literature are protected by
copyright and performing arts by rights in performances.
.
The IP Toolkit
▪Brands: protected by registered trade marks but also by the common law
(judge made) action of passing off and geographical indications.
▪Designs: new designs having individual character are protected by design
registration, supplemental unregistered designs and in some circumstances
copyright. Functional designs are protected by unregistered design rights,
▪Technology: new products and processes can be protected by patents or
by the law of confidence as trade secrets. New plant varieties are
protected by plant breeders’ rights. Semiconductor topographies are
protected by modified unregistered design rights. Computer programs are
protected by copyright and the law of confidence.
▪Works of Art and Literature: visual arts and literature are protected by
copyright and performing arts by rights in performances.
.
www.4-5.co.uk
Obtaining IP Rights
▪Some IPR such as copyrights, unregistered design rights, rights in
performances and common law rights such as the law of confidence or the
action for passing off come into being automatically.
▪Other rights such as patents, registered designs and trade marks have to be
registered with an intellectual property office.
▪Registered rights generally offer wider protection than unregistered rights:
▪Patent confers a monopoly of the manufacture, marketing,
distribution, importation or use of a patented invention for up to 20
years.
▪A copyright confers only a right to prevent copying of a copyright work
and not the right to prevent the making of a similar work per se.
.
Obtaining IP Rights
▪Some IPR such as copyrights, unregistered design rights, rights in
performances and common law rights such as the law of confidence or the
action for passing off come into being automatically.
▪Other rights such as patents, registered designs and trade marks have to be
registered with an intellectual property office.
▪Registered rights generally offer wider protection than unregistered rights:
▪Patent confers a monopoly of the manufacture, marketing,
distribution, importation or use of a patented invention for up to 20
years.
▪A copyright confers only a right to prevent copying of a copyright work
and not the right to prevent the making of a similar work per se.
.
www.4-5.co.uk
Patents
Patents are monopolies that are granted as a reward for disclosing a new
invention to the public:
▪If the invention is a product the patent confers a monopoly of the
manufacture, marketing,disposal, importation or use of the product;
▪If the invention is a process the patent confers a monopoly of use of the
process including the marketing, disposal, importation or use of a product
obtained directly from the process.
Patents are territorial. They are granted only for specified countries, groups of
countries or territories. There is no such thing as a world or even a European
Union patent though there is now a “unitary patent.”
.
Patents
Patents are monopolies that are granted as a reward for disclosing a new
invention to the public:
▪If the invention is a product the patent confers a monopoly of the
manufacture, marketing,disposal, importation or use of the product;
▪If the invention is a process the patent confers a monopoly of use of the
process including the marketing, disposal, importation or use of a product
obtained directly from the process.
Patents are territorial. They are granted only for specified countries, groups of
countries or territories. There is no such thing as a world or even a European
Union patent though there is now a “unitary patent.”
.
www.4-5.co.uk
Patents
▪Patents for the UK may be granted by the UK Intellectual Property Office
(“IPO”) in Newport or the European Patent Office (“EPO”) in Munich.
▪IPO is an executive agency of the Department for Science, Innovation and
Technology.
▪Minister for IP is Feryal Clark, Under Secretary of State for AI and Digital
Government.
▪EPO established by European Patent Convention to grant patents on behalf
of contracting states which include all EU member states plus UK,
Switzerland, Norway, Turkey and several countries outside Europe.
▪Patents granted by EPO are called “European patents (UK)” and are treated
as equivalent in every way to patents granted by IPO in Newport.
.
Patents
▪Patents for the UK may be granted by the UK Intellectual Property Office
(“IPO”) in Newport or the European Patent Office (“EPO”) in Munich.
▪IPO is an executive agency of the Department for Science, Innovation and
Technology.
▪Minister for IP is Feryal Clark, Under Secretary of State for AI and Digital
Government.
▪EPO established by European Patent Convention to grant patents on behalf
of contracting states which include all EU member states plus UK,
Switzerland, Norway, Turkey and several countries outside Europe.
▪Patents granted by EPO are called “European patents (UK)” and are treated
as equivalent in every way to patents granted by IPO in Newport.
.
www.4-5.co.uk
Patents
Patents are granted for inventions that are:
▪new
▪not obvious
▪useful, and
▪fall outside statutory exceptions.
One of those exceptions is that a patent cannot be granted for computer
programs “as such” but it may be possible to obtain a patent for a software
implemented invention such as a machine tool or flight simulator.
Applicants must disclose their inventions on a document called a “specification”
in a “manner that is clear enough and complete enough for the invention to be
performed by a person skilled in the art.
.
Patents
Patents are granted for inventions that are:
▪new
▪not obvious
▪useful, and
▪fall outside statutory exceptions.
One of those exceptions is that a patent cannot be granted for computer
programs “as such” but it may be possible to obtain a patent for a software
implemented invention such as a machine tool or flight simulator.
Applicants must disclose their inventions on a document called a “specification”
in a “manner that is clear enough and complete enough for the invention to be
performed by a person skilled in the art.
.
www.4-5.co.uk
Patents
Specifications consist of:
▪a description of the invention;
▪claims; and
▪drawings mentioned in the description and claims.
The description is often called “the teaching” and represents the invention
owner’s side of the patent bargain.
Claims define the matter for which the applicant seeks protection. In the UK
and most other patent legislation, the invention is taken to be that specified in
a claim. They are arranged in numbered paragraphs immediately after the
description. They represent the state’s side of the patent bargain.
.
Patents
Specifications consist of:
▪a description of the invention;
▪claims; and
▪drawings mentioned in the description and claims.
The description is often called “the teaching” and represents the invention
owner’s side of the patent bargain.
Claims define the matter for which the applicant seeks protection. In the UK
and most other patent legislation, the invention is taken to be that specified in
a claim. They are arranged in numbered paragraphs immediately after the
description. They represent the state’s side of the patent bargain.
.
www.4-5.co.uk
Patents
A patent is infringed if a third party does any of the acts that are reserved to the
patentee in respect of a product or process that falls within the scope of any of
the claims.
At a trial the court analyses a claim to find out exactly what it means and then
examines the allegedly infringing item to see whether it has the features set out
in the claim.
Drafting a patent specification requires great skill:
▪The claim has to be wide enough to ensure that the patentee can get a
reasonable return by manufacturing or licensing.
▪ On the other hand it cannot be too broad in case it is found to be invalid.
That is why it is advisable to instruct patent attorneys.
.
Patents
A patent is infringed if a third party does any of the acts that are reserved to the
patentee in respect of a product or process that falls within the scope of any of
the claims.
At a trial the court analyses a claim to find out exactly what it means and then
examines the allegedly infringing item to see whether it has the features set out
in the claim.
Drafting a patent specification requires great skill:
▪The claim has to be wide enough to ensure that the patentee can get a
reasonable return by manufacturing or licensing.
▪ On the other hand it cannot be too broad in case it is found to be invalid.
That is why it is advisable to instruct patent attorneys.
.
www.4-5.co.uk
Patents
A UK patent protects inventions only within the UK. If an inventor seeks
protection elsewhere he or she may:
▪apply to the EPO for a unitary patent or for corresponding European
patents for the territories of one or more other contracting parties; or
▪apply simultaneously to the IPOs of up to 157 contracting states under the
Patent Cooperation Treaty.
Costs consist of:
▪office fees
▪attorneys’ fees
▪renewal fees.
A patent for UK alone will cost £5,000. A European patent can cost up to
€35,000 and a PCT application over £100,000.
Patents
A UK patent protects inventions only within the UK. If an inventor seeks
protection elsewhere he or she may:
▪apply to the EPO for a unitary patent or for corresponding European
patents for the territories of one or more other contracting parties; or
▪apply simultaneously to the IPOs of up to 157 contracting states under the
Patent Cooperation Treaty.
Costs consist of:
▪office fees
▪attorneys’ fees
▪renewal fees.
A patent for UK alone will cost £5,000. A European patent can cost up to
€35,000 and a PCT application over £100,000.
www.4-5.co.uk
Designs
In everyday language design can refer to the appearance of an article that
appeals to the senses like a designer sweater or designer furniture or it can
refer to something technical such as the design of a jet engine or a website.
There is a similar distinction in law:
▪designs of items that attract the senses are protected by design
registration and supplementary unregistered design right; and
▪functional designs are protected by unregistered design right.
Designs that are new and have individual character can be registered with the
IPO without substantive examination.
Such designs can also be registered for the EU at the EU IPO in Alicante.
Hague Agreement for registration of designs outside the UK.
Designs
In everyday language design can refer to the appearance of an article that
appeals to the senses like a designer sweater or designer furniture or it can
refer to something technical such as the design of a jet engine or a website.
There is a similar distinction in law:
▪designs of items that attract the senses are protected by design
registration and supplementary unregistered design right; and
▪functional designs are protected by unregistered design right.
Designs that are new and have individual character can be registered with the
IPO without substantive examination.
Such designs can also be registered for the EU at the EU IPO in Alicante.
Hague Agreement for registration of designs outside the UK.
www.4-5.co.uk
Brands
Brands are the image of a business, product or service in the marketplace.
Protected by:
▪trade mark registration
▪action for passing off
▪geographical indications.
Signs that can distinguish the goods and/or services of one undertaking from
those of all others can be registered with the IPO as UK trade marks. Trade
marks are registered for specified goods and/or services.
Trade marks can be registered for an initial period of 10 years and can be
renewed indefinitely.
Brands
Brands are the image of a business, product or service in the marketplace.
Protected by:
▪trade mark registration
▪action for passing off
▪geographical indications.
Signs that can distinguish the goods and/or services of one undertaking from
those of all others can be registered with the IPO as UK trade marks. Trade
marks are registered for specified goods and/or services.
Trade marks can be registered for an initial period of 10 years and can be
renewed indefinitely.
www.4-5.co.uk
Trade Marks
Applications are examined by the IPO for compliance with the legislation.
An application may be refused if:
▪the sign is inherently unregistrable such as “bread” for a baker;
▪if it is
▪identical to an earlier registration for the same goods or services
▪so similar to an earlier registration for identical or similar goods or
services that they are likely to be confused
▪identical or similar to an earlier registration which has a reputation in
the UK and its registration is likely to harm the earlier mark or take
unfair advantage of it, or
▪use of the mark could be prevented by an action for passing off
Trade Marks
Applications are examined by the IPO for compliance with the legislation.
An application may be refused if:
▪the sign is inherently unregistrable such as “bread” for a baker;
▪if it is
▪identical to an earlier registration for the same goods or services
▪so similar to an earlier registration for identical or similar goods or
services that they are likely to be confused
▪identical or similar to an earlier registration which has a reputation in
the UK and its registration is likely to harm the earlier mark or take
unfair advantage of it, or
▪use of the mark could be prevented by an action for passing off
www.4-5.co.uk
Trade Marks
If the application is not refused because the mark is inherently unregistrable it
is advertised and posted to the Internet.
Anyone who objects to registration can:
▪make representations to the examiner and ask him or her to reconsider the
application; or
▪oppose the application in the IPO.
An opposition can often lead to a hearing in the IPO.
The process takes about 3 to 6 months and costs a few hundred pounds.
Marks can be registered for the EU at the EU IPO in Alicante or in countries that
are party to the Madrid Protocol through a single application.
Trade Marks
If the application is not refused because the mark is inherently unregistrable it
is advertised and posted to the Internet.
Anyone who objects to registration can:
▪make representations to the examiner and ask him or her to reconsider the
application; or
▪oppose the application in the IPO.
An opposition can often lead to a hearing in the IPO.
The process takes about 3 to 6 months and costs a few hundred pounds.
Marks can be registered for the EU at the EU IPO in Alicante or in countries that
are party to the Madrid Protocol through a single application.
www.4-5.co.uk
Copyright
Sunsists automatically in:
▪original artistic, dramatic, literary and musical works
▪broadcasts, films and sound recordings
▪typographical arrangements of published works
created by a UK national or resident or a citizen of a party to the Berne or
Universal Copyright Conventions or World Trade Organization.
Exclusive right to copy, publish, rent, lend, perform or communicate the work in
public, translate or otherwise adapt it.
Lasts for the life of the author plus 70 years
No need for registration in the UK but required in USA, India and some other
countries.
Copyright
Sunsists automatically in:
▪original artistic, dramatic, literary and musical works
▪broadcasts, films and sound recordings
▪typographical arrangements of published works
created by a UK national or resident or a citizen of a party to the Berne or
Universal Copyright Conventions or World Trade Organization.
Exclusive right to copy, publish, rent, lend, perform or communicate the work in
public, translate or otherwise adapt it.
Lasts for the life of the author plus 70 years
No need for registration in the UK but required in USA, India and some other
countries.
www.4-5.co.uk
Enforcement
IPR have to be enforced by actions in the civil courts though bootlegging,
counterfeiting and piracy are also crimes.
▪Patent, registered design, plant varieties and semiconductor topography
design right cases have to be brought in the Patents Court or the
Intellectual Property Enterprise Court (“IPEC”)
▪All other IP cases can be brought the Chancery Division of the High Court or
the County Court though County Court cases will usually be transferred to
IPEC.
▪IPEC multitrack for claims of £500,000 or less which can be tried in 2 days.
▪IPEC small claims track for IP claims other than patent, registered designs.
plant variety or semiconductor topography claims of £10,000 or less can be
brought in the Manchester or other Business and Property Courts.
Enforcement
IPR have to be enforced by actions in the civil courts though bootlegging,
counterfeiting and piracy are also crimes.
▪Patent, registered design, plant varieties and semiconductor topography
design right cases have to be brought in the Patents Court or the
Intellectual Property Enterprise Court (“IPEC”)
▪All other IP cases can be brought the Chancery Division of the High Court or
the County Court though County Court cases will usually be transferred to
IPEC.
▪IPEC multitrack for claims of £500,000 or less which can be tried in 2 days.
▪IPEC small claims track for IP claims other than patent, registered designs.
plant variety or semiconductor topography claims of £10,000 or less can be
brought in the Manchester or other Business and Property Courts.
www.4-5.co.uk
IP Insurance
▪TaylorWessing’s Patent Map compares litigation costs in England and Wales
with most other European countries.
▪England and Wales are by far the most expensive countries with costs
running between £200,000 and £1 million.
▪Costs in the USA are even higher but unsuccessful parties are not usually
required to contribute towards the successful party’s lawyers’ fees whereas
in England and Wales they are.
▪No win, no fee arrangements do not work in England and Wales for
numerous reasons.
▪Prudent for SME to seek before the event insurance.
▪Ample guidance on the NIPC Inventors’ Clubs, CIPA and IPO websites.
IP Insurance
▪TaylorWessing’s Patent Map compares litigation costs in England and Wales
with most other European countries.
▪England and Wales are by far the most expensive countries with costs
running between £200,000 and £1 million.
▪Costs in the USA are even higher but unsuccessful parties are not usually
required to contribute towards the successful party’s lawyers’ fees whereas
in England and Wales they are.
▪No win, no fee arrangements do not work in England and Wales for
numerous reasons.
▪Prudent for SME to seek before the event insurance.
▪Ample guidance on the NIPC Inventors’ Clubs, CIPA and IPO websites.
www.4-5.co.uk
IP and Convergent Content
▪Trade Marks: All businesses should protect their branding
▪Digital media and entertainment: Source code of software protected by
trade secrecy and copyright, content by copyright and maybe
performances by rights in performances.
▪Interactive Arts and Design: source code of software protected by trade
secrecy and copyright, content by copyright and designs by supplementary
unregistered designs and unregistered design rights.
▪Augmented reality and Virtual Reality: Possibly some scope for patenting
otherwise trade secrecy and copyright.
▪Creative Software and Tools: Possibly some scope for patenting otherwise
trade secrecy and copyright.
IP and Convergent Content
▪Trade Marks: All businesses should protect their branding
▪Digital media and entertainment: Source code of software protected by
trade secrecy and copyright, content by copyright and maybe
performances by rights in performances.
▪Interactive Arts and Design: source code of software protected by trade
secrecy and copyright, content by copyright and designs by supplementary
unregistered designs and unregistered design rights.
▪Augmented reality and Virtual Reality: Possibly some scope for patenting
otherwise trade secrecy and copyright.
▪Creative Software and Tools: Possibly some scope for patenting otherwise
trade secrecy and copyright.
www.4-5.co.uk
IP and Convergent Content
▪Gaming and Gamification: Trade secrecy and copyright.
▪Artificial intelligence in Creative Applications: Possibly some scope for
software patents but neware the judgment of the Court of Appeal in
Comptroller General of Patents, Designs and Trade Marks v Emotional
Perception AI Ltd [2024] EWCA Civ 825 (19 July 2024). Otherwise copyright
and trade secrecy.
IP and Convergent Content
▪Gaming and Gamification: Trade secrecy and copyright.
▪Artificial intelligence in Creative Applications: Possibly some scope for
software patents but neware the judgment of the Court of Appeal in
Comptroller General of Patents, Designs and Trade Marks v Emotional
Perception AI Ltd [2024] EWCA Civ 825 (19 July 2024). Otherwise copyright
and trade secrecy.
www.4-5.co.uk
Further Information
▪NIPC Law (www.nipclaw.com) (nipclaw.blogspot.com)
▪NIPC Inventors Club (nipcinvention.blogspot.com)
▪NIPC Wales (nipcwales.blogspot.com)
▪WIPO (UN agency for IP) www.wipo.int
▪EPO (www.epo.org)
▪IPO (www.gov.uk/government/organisations/intellectual-property-office)
▪Chartered Institute of Trade Mark Attorneys (CIPA) {www.cipa.org.uk/)
▪Chartered Institute of Trade Mark Attorneys (CITMA) (hwww.citma.org.uk/)
Further Information
▪NIPC Law (www.nipclaw.com) (nipclaw.blogspot.com)
▪NIPC Inventors Club (nipcinvention.blogspot.com)
▪NIPC Wales (nipcwales.blogspot.com)
▪WIPO (UN agency for IP) www.wipo.int
▪EPO (www.epo.org)
▪IPO (www.gov.uk/government/organisations/intellectual-property-office)
▪Chartered Institute of Trade Mark Attorneys (CIPA) {www.cipa.org.uk/)
▪Chartered Institute of Trade Mark Attorneys (CITMA) (hwww.citma.org.uk/)
www.4-5.co.uk
Contact
)
Jane Lambert
4-5 Gray’s Inn Square
London, WC1R 5AH
www.4-5.co.uk
[email protected]
020 7404 5252
Contact
)
Jane Lambert
4-5 Gray’s Inn Square
London, WC1R 5AH
www.4-5.co.uk
[email protected]
020 7404 5252
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