What is a patent?
A patent is an exclusive right granted for an invention. In other words, a patent is an
exclusive right to a product or a process that generally provides a new way of doing
something, or offers a new technical solution to a problem. To get a patent, technical
information about the invention must be disclosed to the public in a patent application.

The patent owner may give permission to, or license, other parties to use the invention
on mutually agreed terms. The owner may also sell the right to the invention to
someone else, who will then become the new owner of the patent. Once a patent
expires, the protection ends, and an invention enters the public domain; that is, anyone
can commercially exploit the invention without infringing the patent.
 What rights does a patent provide?
A patent owner has the right to decide who may – or may not – use the patented
invention for the period in which the invention is protected. In other words, patent
protection means that the invention cannot be commercially made, used, distributed,
imported, or sold by others without the patent owner's consent.

 What kinds of inventions can be protected?

Patents may be granted for inventions in any field of technology, from an everyday
kitchen utensil to a nanotechnology chip. An invention can be a product – such as a
chemical compound, or a process, for example – or a process for producing a specific
chemical compound. Many products in fact contain a number of inventions. For
example, a laptop computer can involve hundreds of inventions, working together.

 How long does patent protection last?

Patent protection is granted for a limited period, generally 20 years from the filing date
of the application.

 Is a patent valid in every country?

Patents are territorial rights. In general, the exclusive rights are only applicable in the
country or region in which a patent has been filed and granted, in accordance with the
law of that country or region.

 How are patent rights enforced?

Patent rights are usually enforced in a court on the initiative of the right owner. In most
systems a court of law has the authority to stop patent infringement. However the main
responsibility for monitoring, identifying, and taking action against infringers of a patent
lies with the patent owner.

 What does it mean to “license a patent” and why is it done?

Licensing a patent simply means that the patent owner grants permission to another
individual/organization to make, use, sell etc. his/her patented invention. This takes
place according to agreed terms and conditions (for example, defining the amount and
type of payment to be made by the licensee to the licensor), for a defined purpose, in a
defined territory, and for an agreed period of time.

A patent owner may grant a license to a third party for many reasons. The patent owner
may not have the necessary manufacturing facilities, for example, and therefore opts to
allow others to make and sell his/her patented invention in return for “royalty” payments.
Alternatively, a patent owner may have manufacturing facilities, but they may not be
large enough to cover market demand. In this case, he/she may be interested in
licensing the patent to another manufacturer in order to benefit from another income
stream. Another possible situation is one in which the patent owner wishes to
concentrate on one geographic market; therefore the patent owner may choose to grant
a license to another individual/organization, with interests in other geographical
markets. Entering into a licensing agreement can help to build a mutually-beneficial
business relationship.

Unlike selling or transferring a patent to another party, the licensor continue to have
property rights over the patented invention.

 Why are patents useful (to society, business, individuals etc.)?

Patented inventions have, in fact, pervaded every aspect of human life, from electric
lighting (patents held by Edison and Swan) and plastic (patents held by Baekeland), to
ballpoint pens (patents held by Biro), and microprocessors (patents held by Intel, for
example).

Patents provide incentives to and protection for individuals by offering them recognition
for their creativity and the possibility of material reward for their inventions. At the same
time, the obligatory publication of patents and patent applications facilitates the
mutually-beneficial spread of new knowledge and accelerates innovation activities by,
for example, avoiding the necessity to “re-invent the wheel”.

Once knowledge is publicly available, by its nature, it can be used simultaneously by an

unlimited number of persons. While this is, without doubt, perfectly acceptable for public
information, it causes a dilemma for the commercialization of technical knowledge. In
the absence of protection of such knowledge, “free-riders” could easily use technical
knowledge embedded in inventions without any recognition of the creativity of the
inventor or contribution to the investments made by the inventor. As a consequence,
inventors would naturally be discouraged to bring new inventions to the market, and
tend to keep their commercially valuable inventions secret. A patent system intends to
correct such under-provision of innovative activities by providing innovators with limited
exclusive rights, thereby giving the innovators the possibility to receive appropriate
returns on their innovative activities.
In a wider sense, the public disclosure of the technical knowledge in the patent, and the
exclusive right granted by the patent, provide incentives for competitors to search for
alternative solutions and to “invent around” the first invention. These incentives and the
dissemination of knowledge about new inventions encourage further innovation, which
assures that the quality of human life and the well-being of society is continuously
enhanced.

Applying for patent protection

 What conditions must be met to obtain patent protection?

There are numerous conditions that must be met in order to obtain a patent and it is not
possible to compile an exhaustive, universally applicable list. However, some of the key
conditions include the following:

 The invention must show an element of novelty; that is, some new
characteristic which is not known in the body of existing knowledge in its
technical field. This body of existing knowledge is called “prior art”.
 The invention must involve an “inventive step” or “non-obvious”, which means
that it could not be obviously deduced by a person having ordinary skill in the
relevant technical field.
 The invention must be capable of industrial application, meaning that it must
be capable of being used for an industrial or business purpose beyond a mere
theoretical phenomenon, or be useful.
 Its subject matter must be accepted as “patentable” under law. In many
countries, scientific theories, aesthetic creations, mathematical methods, plant
or animal varieties, discoveries of natural substances, commercial methods,
methods for medical treatment (as opposed to medical products) or computer
programs are generally not patentable.
 The invention must be disclosed in an application in a manner sufficiently clear
and complete to enable it to be replicated by a person with an ordinary level of
skill in the relevant technical field.
 Who grants patents?
A patent is granted by a national patent office or by a regional office that carries out the
task for a number of countries. Currently, the following regional patent offices are in
operation:

 African Intellectual Property Organization (OAPI)

 African Regional Intellectual Property Organization (ARIPO)
 Eurasian Patent Organization (EAPO)
  European Patent Office (EPO)
 Patent Office of the Cooperation Council for the Arab States of the Gulf (GCC
Patent Office)
Under such regional systems, an applicant requests protection for an invention in one or
more member states of the regional organization in question. The regional office
accepts these patent applications, which have the same effect as national applications,
or grants patents, if all the criteria for the grant of such a regional patent are met.

There is currently, no universal, international system for the grant of patents.

 Do I need a patent attorney/agent to prepare and file a patent application?

In general, applicants can prepare their patent applications and file them without
assistance from a patent attorney. However, given the complexity of patent documents
and the legal skills required, such as claim drafting, it is highly advisable to seek legal
assistance from a patent attorney/agent when drafting a patent application.

Furthermore, the legislation of many countries requires that an applicant, whose

ordinary residence or principal place of business is outside the country, be represented
by an attorney or agent qualified in the country (which usually means an agent or
attorney who resides and practices in that country). Information on the qualified
attorneys and agents can be obtained directly from national and regional IP offices.
 How much does it cost to patent an invention?
The costs vary considerably from country to country (and even within a country). As the
official fees vary widely from country to country, please contact the relevant national or
regional patent office which will be able to give you details on the fee structure. Consult
our list of national and regional intellectual property offices.
The cost of patenting an invention depends on factors such as the nature of the
invention, its complexity, patent attorney’s fees, the length of the application, and
possible objections raised during the examination by the patent office. Some countries
offer discounts to small- and medium-sized enterprises and applicants filing the
application online. In addition, some countries allow expedited examination upon
payment of additional fees.

In addition to the national official filing fees, once a patent is granted by the patent
office, you must pay maintenance or renewal fees, generally on an annual basis, to
maintain the validity of the patent.

In case you decide to patent your invention abroad, you should also consider the
relevant official filing fees for each country in question, the translation costs, and the
costs of using local patent agents, which is a requirement in many countries for foreign
applicants.
 How can patents be obtained worldwide?
At present, you cannot obtain a universal “world patent” or “international patent”.
Patents are territorial rights. In general, an application for a patent must be filed, and the
patent granted and enforced, in each country in which you seek patent protection for
your invention, in accordance with the law of that country. Therefore, one way of
obtaining patents in a number of countries is to file a national patent application with
each relevant national patent office.
In some regions, a regional patent office, for example, the European Patent Office
(EPO) and the African Regional Intellectual Property Organization (ARIPO), accepts
regional patent applications, or grants patents. These have the same effect as
applications filed, or patents granted, in the member states of that region. This means
that, in certain regions, you can obtain a regional patent from a regional patent office,
which is valid in some or all of its member states.
If you are seeking patent protection in a number of countries worldwide, a good option is
to file an international application under the Patent Cooperation Treaty (PCT),
administered by WIPO. Any resident or national of a state party to the PCT (contracting
state) can file a single international application which has the effect of a national patent
application (and certain regional patent applications) in some or all PCT contracting
states. In some cases, this can be a more straightforward choice than choosing to try to
submit individual applications in each and every country in which you require
protection. Find out more about the PCT System.
 What practical steps do I have to take to obtain patent protection?
The first step in securing a patent is the filing of a patent application. Many patent
offices provide a specific form to fill in. In some patent offices, you can file a patent
application on line.

In the patent application, in general, you must describe the title of the invention, as well
as provide an indication of its technical field. You must also include the background to
and a description of the invention, in clear language and enough detail that a person
with an average understanding of the field could use or reproduce the invention. Such
descriptions are usually accompanied by visual materials such as drawings, plans, or
diagrams to better describe the invention and an abstract, which contains a brief
summary of the invention. You must also clearly and concisely define the matter for
which patent protection is sought in the “claims” part of the patent application.

In addition, depending on the applicable patent law, you may need to submit various
kinds of statements, declarations or supporting documents to a patent office. In view of
the complexity it is recommended that you consult a patent attorney or a patent agent to
prepare a patent application.

 What happens after I’ve submitted my application?

The procedures vary significantly from one country to another, so it is impossible to
provide an exhaustive step-by-step overview. If you wish to research a country’s
legislation in the field of patents independently, you can browse the WIPO Lex
database of intellectual property (IP) legislation from around the world.
However it is recommended that you consult either a practicing lawyer specializing in IP
or the relevant IP office. Consult our directory of national and regional IP offices.
 Can the decision to grant a patent be challenged?
The grant of a patent can be challenged either via a patent office or in a court of law. A
court may invalidate or revoke a patent upon a successful challenge by a third party. In
addition, many patent offices provide administrative procedures that allow third parties
to oppose to the grant of a patent (including so-called "opposition systems"), for
example, on the basis that the claimed invention is not new or does not involve an
inventive step.

Procedures for challenging patents differ from country to country. Find out more about
opposition systems.
 Is it possible to extend the term of patent protection?
In some countries, patent protection may be extended beyond 20 years or a
Supplementary Protection Certificate (SPC) may be issued in very specific cases. The
extension aims to compensate for the time expended on the administrative approval
procedure before products can be put on the market. The time taken for this procedure
means that the patent owner may sometimes not be able to benefit from his right for a
considerable period of time after the grant of the patent.

 Can I obtain a patent for a software-related invention?

Possibly, but laws and practices in this regard can differ from one country or region to
another. For example, in some countries, “inventions” within the meaning of patent law
must have a “technical character”. In other countries, such requirements do not exist,
meaning that in these countries software is generally patentable subject matter.

However this does not mean that all software will be able to be patent protected. In
order to obtain a patent, a software invention must not fall under other non-patentable
subject matter (for example, abstract ideas or mathematical theories) and has to fulfill
the other substantive patentability criteria (for example, novelty, inventive step [non-
obviousness] and industrial applicability [usefulness]).

It is therefore recommended that you consult a practicing lawyer specializing in

intellectual property or the intellectual property offices of those countries in which you
are interested in obtaining protection. Consult our directory of national and regional
intellectual property offices to get in contact with a local IP professional, or browse the
WIPO Lex database of intellectual property legislation from around the world.
Find out more about using patents to protect software and business methods.
Should a patent turn out not to be a viable option for your software-related invention,
then using copyright as a means of protection may be an alternative. In general,
computer programs are protected under copyright as literary works. The protection
starts with the creation or fixation of the work, such as software or a webpage.
Moreover, in general, you are not required to register or deposit copies of a work in
order to obtain copyright protection.

However, according to a well-established principle, copyright protection extends only to

expressions, not to ideas, procedures, methods of operation, or mathematical concepts
as such. Thus many companies protect the object code of computer programs by
copyright, while the source code is kept as a trade secret. Find out more about
copyright.
 Can I patent my app?
Whether you can obtain patent protection for an app depends on which element of your
app you wish to protect. If you want to protect a technical idea or feature relating to the
app, patent protection is a potential option. Depending on the applicable national law,
the software that runs your app may be able to be protected by patents if it has certain
technical features. You must be mindful however that your technical idea must meet all
of the patentability requirements to obtain patent protection, and it may take years to get
a patent.
In addition, it is important to ask yourself which element(s) of your app should be
protected from free use by competitors. The software that runs your app can be
protected by copyright (potentially also by patents, as described above). If you are
interested in protecting logos or signs contained within your app however, you should
consider protecting them using trademarks. Literary and artistic works included within
your app, such as original databases, musical works, audiovisual works, works of fine
art and photographs, are protected by copyright. Graphical objects and layouts can be
protected using industrial designs.
Find more about the various types of intellectual property rights.
 How can I search for inventions that have already been patented?
Please see the questions and answers under the topic “Patent Information ”, in
particular, the answer to the question “Where can I find patent information ?”.
 How can I find the patent laws of various countries?
WIPO Lex provides easy access to intellectual property legislation from a wide range of
countries and regions as well as to treaties on intellectual property.
Many national or regional patent offices also provide information concerning national or
regional legislation on their websites. Consult our list of national and regional intellectual
property offices.
Confidentiality

 Can I obtain a patent and keep my invention secret?

No. Patents are granted by patent offices in exchange for a full disclosure of the
invention. In general, the details of the invention are then published and made available
to the public at large.

It should be noted that publication can take place at various stages of the procedure. In
some countries, the patent document is only published after the granting of a patent. In
other countries, patent applications are generally published 18 months from the filing
date or, where priority has been claimed, the priority date (for more details, see the
website of your national IP office).
 Can I discuss details of my invention with a potential investor before filing a
patent application?
It is important to file a patent application before publicly disclosing the details of an
invention. In general, any invention which is made public before an application is filed
would be considered “prior art ” (although the definition of the term “prior art” is not
uniform at the international level, in many countries, it refers to any information which
has been made available to the public anywhere in the world by written or oral
disclosure before the filing date).
In countries which apply the above definition of the term “prior art”, an applicant’s public
disclosure of an invention prior to filing a patent application would prevent him/her from
obtaining a valid patent for that invention, since the invention would not comply with
the novelty requirement. Some countries, however, allow for a grace period – usually
between 6 and 12 months – which provides a safeguard for applicants who disclosed
their inventions before filing a patent application. Further, the novelty criteria may be
interpreted differently depending on the applicable law.
If disclosing your invention before filing a patent application is unavoidable – for
example, to a potential investor or a business partner – then any disclosure should be
accompanied by a confidentiality or non-disclosure agreement. It should also be kept in
mind that applying early for patent protection will generally be helpful when seeking
financial support to commercialize an invention.

Patents and business

 How are patents relevant to my business?

While it is certainly true that not all enterprises develop patentable inventions, it is a
wrong to believe that patents only apply to complex physical or chemical processes and
products or that they are only useful to large corporations. Patents can be obtained for
any area of technology from paper clips to computers.

Moreover, when people think of patents, what usually comes to mind are major scientific
breakthroughs such as Edison’s first electric lamp, or large corporations investing in
research and development. But, in fact, most patents aren’t granted for groundbreaking
scientific breakthroughs, but rather for inventions that make improvements to existing
inventions. For example the second or third generation of a product or a process, that
works in a more cost-effective or efficient manner.

Certain countries also have specific legal provisions for protecting incremental
innovations. These are called utility models and they tend to have a shorter duration
than patents and are generally easier to obtain.
 Why should I consider patenting my inventions?
 Exclusive rights: Patents provide you with an exclusive right to prevent or stop
others from commercially exploiting an invention for twenty years from the date
of filing of the patent application.
 Return on investments: Having invested a considerable amount of money and
time in developing innovative products, through exclusive patent rights, you
may be able to establish yourself in the market as the pre-eminent player and
to obtain higher returns on investments.
 Opportunity to license or sell the invention: If you choose not to exploit the
patent yourself, you may sell it or license the commercialization of the
patented invention to another enterprise, which could then be a source of
income for your company.
 Increase in negotiating power: If your company is in the process of acquiring
the rights to use the patents of another enterprise through a licensing contract,
your patent portfolio will enhance your bargaining power. That is to say, your
patents may prove to be of considerable interest to the enterprise with which
you are negotiating, and you could enter into a cross-licensing arrangement
where, simply put, your enterprise and the other agree to license respective
patents to each other.
 Positive image for your enterprise: Business partners, investors and
shareholders may perceive patent portfolios as a demonstration of the high
level of expertise, specialization, and technological capacity within your
company. This may prove useful for raising funds, finding business partners
and raising your company’s market value.
 What happens if I don’t patent my inventions?
If you don’t patent your invention, competitors may well take advantage of it. If the
product is successful, many other competitor firms will be tempted to make the same
product by using your invention without needing to ask for your permission. Larger
enterprises may take advantage of economies of scale to produce the product more
cheaply and compete at a more favorable market price. This may considerably reduce
your company’s market share for that product. Even small competing enterprises may
be able to produce the same product, and often sell it at a lower price as they would not
have to recoup the original research and development costs incurred by your company.
But that’s not all. The possibilities to license, sell or transfer technology will be severely
hindered if you don’t patent your invention; indeed, without intellectual property (patent)
rights, transfers of technology would be difficult if not impossible. The transfer of
technology assumes that one or more parties have legal ownership of a technology and
this can only be effectively obtained through appropriate intellectual property (IP)
protection. Without IP protection for the technology in question, all sides tend to be
suspicious of disclosing their inventions during technology transfer talks, fearing that the
other side may “run away with the invention”.

Finally, you have to consider the possibility that someone else may patent your
invention first. The first person or enterprise to file a patent for an invention will have the
right to the patent. This may in fact mean that, if you do not patent your inventions or
inventions made the employees of your company, somebody else – who may have
developed the same or an equivalent invention later – may do so. Thus they could
legitimately exclude your enterprise from the market, limit your activities to the
continuation of prior use (where the patent legislation provides for such an exception),
or ask your company to pay a licensing fee for using the invention.

However, to ensure that no one is able to patent your invention, instead of filing a patent
application, you may disclose the invention to the public so that it becomes prior art for
any patent application that will be filed after your publication, thereby placing it in the
public domain (commonly known as defensive publication). Because of the existence of
such prior art, later filed patent applications containing the same or similar invention will
be refused by a patent office on the grounds of the lack of novelty or inventive step. At
the same time, if you disclose your invention before filing a patent application, you will
severely limit your possibility of obtaining patent protection on that invention.
 How do I go about licensing my patent to a 3rd party?
Each situation is unique, so there is no one “correct” way to go about licensing a patent.
In some countries, a patent applicant’s intention to grant a license to third parties can be
published in the official gazette. To find out more, get in touch with your national IP
office.
In general however, it is possible to say that if you intend to license your patent, what is
important is diligent preparation. Before starting negotiation with a potential licensee,
you should be informed of the current situation and future prospects of the relevant
market and technology. Moreover, you should find out about the commercial state of a
potential licensee and the associated financial value of your patent, etc. You should
reflect on your own business objectives and carefully consider how entering into a
licensing agreement fits into your short- and long-term business strategies.

 Are utility models and trade secrets alternatives to patent protection?

In many cases, where an enterprise has merely improved an existing product and the
said improvement is not sufficiently inventive to be deemed patentable, utility
models may represent a good alternative, if available in the country in question. On
occasions, it may be advisable for your company to keep its innovations as trade
secrets which requires, in particular, that sufficient measures are taken to keep the
information confidential.
Another alternative strategy could be to ensure that no one is able to patent your
invention by disclosing it (commonly known as defensive publication), thereby assuring
its place in the public domain. However, you should carefully reflect on using this
strategy, since if you disclose your invention before filing a patent application, you will
severely limit your possibility to obtain patent protection.
 My employee has invented a new product or process: Who will own the rights to
the patent?
In most countries, if an employee has developed an invention in execution of his/her
employment contract – i.e. usually during his/her working time within the enterprise –
the invention (and the related patent rights) will belong to the enterprise. To avoid
confusion and possible disputes, employers often specify issues of intellectual property
ownership in employment contracts. Depending on the merits of the case, the employee
may, however, have a right to equitable remuneration in accordance with legislative
provisions or the employment contract. In any case, the employee will always retain the
right to be mentioned as the inventor, unless he/she expressly renounces this right.

 What is patent information?

Patent information commonly refers to the information found in patent applications and
granted patents. This information may include bibliographic data about the inventor and
patent applicant or patent holder, a description of the claimed invention and related
developments in the field of technology, and a list of claims indicating the scope of
patent protection sought by the applicant.

But why would patent applicants disclose such extensive information about their
inventions? The reason is that the patent system balances the exclusive rights granted
to a patent holder over an invention with the obligation to publicly disclose information
about the newly developed technology.

The requirement that a patent applicant disclose information about their invention(s) is
very important for the continuous development of the technology. This information
provides a basis on which new technical solutions can be developed by other inventors.
Without publication there would be no way for the public to get information about new
technical developments. It is therefore not surprising that providing information for the
public is a key task of industrial property offices.

 Why should I care about patent information?

Patent documents contain technological information that is often not divulged in any
other form of publication, covering practically every field of technology. They have a
relatively standardized format and are classified according to technical fields to make
identifying relevant documents even easier (for more information, see “General
Information on the International Patent Classification System   ”). All in all, they are a
vast store of easily accessible human knowledge.
The information contained in patent documents can be very useful to researchers,
entrepreneurs, and many others, helping them:

 avoid duplication of research and development work;

 build on and improve existing products or processes;
 assess the state-of-the-art in a specific technological field, e.g. to get an idea
of the latest developments in this field;
 evaluate the patentability of inventions, in particular the novelty and
inventiveness of inventions (important criteria for determining their
patentability), with a view to applying for patent protection domestically or
abroad;
 identify inventions protected by patents, in particular to avoid infringement and
seek opportunities for licensing;
 monitor activities of potential partners and competitors both within the country
and abroad; and
 identify market niches or discover new trends in technology or product
development at an early stage.
 Where can I find patent information?
Patent documents are published by national and regional patent offices, usually 18
months after the date on which a patent application was first filed or once a patent has
been granted for the invention claimed by the patent applicant. Some patent offices
publish patent documents through free-of-charge online databases, making it easier
than ever to access patent information.

WIPO’s PATENTSCOPE database provides free-of-charge online access to millions of

international patent applications filed under the Patent Cooperation Treaty (PCT)
System as well as patent documents filed at national and regional patent offices such as
the European Patent Office and the United States Patent and Trademark Office.
Though accessibility of patent information has grown as more and more patent offices
make their patent documents available through online databases, certain skills are still
required in order to make effective use of this information, including carrying out
targeted patent searches and providing meaningful analysis of patent search results. As
a result, it may be advisable to contact a patent information professional for assistance
where business-critical decisions are at stake.
What is copyright?

Copyright (or author’s right) is a legal term used to describe the rights that creators have
over their literary and artistic works. Works covered by copyright range from books,
music, paintings, sculpture, and films, to computer programs, databases,
advertisements, maps, and technical drawings.

 What can be protected using copyright?

Exhaustive lists of works covered by copyright are usually not to be found in legislation.
Nonetheless, broadly speaking, works commonly protected by copyright throughout the
world include:

 literary works such as novels, poems, plays, reference works, newspaper

articles;

 computer programs, databases;

 films, musical compositions, and choreography;

 artistic works such as paintings, drawings, photographs, and sculpture;

 architecture; and

 advertisements, maps, and technical drawings.

Copyright protection extends only to expressions, and not to ideas, procedures,

methods of operation or mathematical concepts as such. Copyright may or may not be
available for a number of objects such as titles, slogans, or logos, depending on
whether they contain sufficient authorship.

 What rights does copyright give me? What are my rights as author of a work?

There are two types of rights under copyright:

 economic rights, which allow the rights owner to derive financial reward from
the use of his works by others; and

 moral rights, which protect the non-economic interests of the author.

Most copyright laws state that the rights owner has the economic right to authorize or
prevent certain uses in relation to a work or, in some cases, to receive remuneration for
the use of his work (such as through collective management). The economic rights
owner of a work can prohibit or authorize:

 its reproduction in various forms, such as printed publication or sound recording;

 its public performance, such as in a play or musical work;

 its recording, for example, in the form of compact discs or DVDs;

 its broadcasting, by radio, cable or satellite;

 its translation into other languages; and

 its adaptation, such as a novel into a film screenplay.

Examples of widely recognized moral rights include the right to claim authorship of a
work and the right to oppose changes to a work that could harm the creator's reputation.

Can I register copyright?

In the majority of countries, and according to the Berne Convention, copyright protection

is obtained automatically without the need for registration or other formalities.

Most countries nonetheless have a system in place to allow for the voluntary registration
of works. Such voluntary registration systems can help solve disputes over ownership or
creation, as well as facilitate financial transactions, sales, and the assignment and/or
transfer of rights.

Please note that WIPO does not offer a copyright registration system or a searchable
copyright database. Find out more about copyright registration and documentation
systems.

 What is a “work”?

The term “work” is used in the copyright context to refer to a wide range of intellectual
creations, from novels to architecture, computer programs, and more. For a more
detailed list of works that can be protected by copyright, refer to the question “What can
be protected using copyright?”.

 What is the © symbol? Do I need to include it on my work?

In the past, some countries had legislation in place that required the copyright holder to
comply with certain formalities in order to receive copyright protection. One of those
formalities was to include an indication that copyright had been claimed, such as by
using the symbol ©. Currently, very few countries still impose formalities on copyright,
therefore the use of such symbols is no longer a legal requirement. Nonetheless, many
right owners still include the symbol © as a highly visible way to emphasize that that
work is protected by copyright and that all rights are reserved, as opposed to a less
restrictive license.

 How long does copyright protection last?

Economic rights have a time limit, which can vary according to national law. In those
countries which are members of the Berne Convention, the time limit should be equal to
or longer than 50 years after the creator’s death. Longer periods of protection may
however be provided at the national level. Contact your national IP office to find out
more or visit WIPO Lex to consult national legislation.

Protecting your work

 Can I protect my works internationally using copyright?

Firstly, copyright protection is automatic in all states party to the Berne

Convention (refer to the question “Can I register copyright?”). Whilst there may be
nuances to the particular national laws applicable in these states, in general there is a
high degree of harmony. You can consult national laws and treaties using WIPO Lex.

When we consider states that are not party to the Berne Convention, you must
remember that copyright laws are territorial. In other words, they apply within the
country in which they were passed. As such, if you wish to protect your work
internationally, you must research and make sure that you comply with the relevant
legal requirements in the country(ies) in which you wish your work to be protected.
 What does it mean to “license” my works and how can I do it?

Once you are the right owner of a work, you can provide authorization for others to use
or exploit your work. Such authorizations are commonly referred to as “licenses” and
may or may not entail paying the rights owner. Naturally, it is always recommended to
seek expert legal advice before negotiating a licensing agreement.

If you wish to license your work to users such as broadcasters, publishers, or even
entertainment establishments (i.e. bars, nightclubs), joining a collective management
organization (CMO) may be a good option. CMOs monitor uses of works on behalf of
creators and publishers and are in charge of negotiating licenses and collecting
remuneration. They are particularly common in the field of musical and literary works
where there may be a large number of users of the same work and it would be difficult
both for the owner of rights and the users to seek specific authorization for every single
use and to monitor them.

 Can I copyright my software or mobile app?

Computer programs and other types of software are considered as literary works for
copyright purposes. Therefore they receive automatic protection without the need for
registration. In some countries, the process of voluntary registration for software may
differ from that for other types of work.

 Is there a copyright registry/depositary?

There is no searchable international registry of copyright-protected works.

This is because, as a general rule, copyright protection is automatic and does not
depend on registration. In some countries, however you may encounter a voluntary
copyright registry/depositary and registering your work can be a smart choice as it
would considerably assist you in the case of a dispute, for example over the ownership
of the work.

Although it may not affect copyright protection, some countries do require a deposit of
samples of printed materials published in that country. Contact your national IP office to
find out more.
 My published work has been reproduced without my permission. What can I do?

Before taking any steps, you should carefully assess whether the reproduction is in fact
an infringement of your copyright (refer to the question on limitations and exceptions to
copyright). If you consider that there is an infringement of your right, you should try to
identify the person responsible. If it is impossible or inappropriate to solve the problem
by informal means, you can seek a legal remedy from a court or other authority.

It is usually possible to bring a claim before a civil court for monetary compensation and
also to prevent the continuation or repetition of the infringement. Before taking this step
though it is often advisable – and even compulsory in some states –to first send a
formal notification to the alleged infringer, requesting him to stop the infringement and/or
to pay compensation.

Alternatively, if the unauthorized reproduction amounts to the criminal offence of

copyright piracy, a complaint may be submitted to the police, public prosecutor or other
competent authority in accordance with applicable local law.

In some cases, the use of alternative dispute resolution mechanisms (such as

mediation, arbitration, expert determination, neutral evaluation, etc.) can provide a
valuable alternative to court procedures, as they may lead to a settlement of the dispute
in a simpler, faster and cheaper way.

If the unauthorized reproduction of the work is being made available through the
internet, it may be possible to notify the relevant internet service provider, asking it to
prevent access to the infringing copy. Such procedures are generally known as “notice-
and-take-down (procedures)”.

If you are a member of a Collective Management Organization (CMO), it will often be

enough to request it to take the appropriate steps. If you are not, it is up to you to act in
order to protect your rights. It is often advisable, in such a case, to instruct a lawyer to
do so on your behalf.

 How can I manage copyright-protected works? What are collective management

organizations?
Collective management organizations (CMOs) monitor uses of works on behalf of
creators and are in charge of negotiating licenses and collecting remuneration. They are
particularly common in the field of musical and literary works where there may be a
large number of users of the same work and it would be difficult both for the owner of
rights and the users to seek specific authorization for every single use and to monitor
them.

 How can I find the copyright laws of various countries?

WIPO Lex provides easy access to intellectual property legislation from a wide range of
countries and regions as well as to treaties on intellectual property.

Many national or regional intellectual property offices also provide information

concerning national or regional legislation on their websites. View a list of links
to national and regional intellectual property offices to find out more.

Using other people's work

 Who owns the copyright to a work? If I create a work whilst in employment, who
is the copyright holder?

The first owner of copyright to a work is generally the original creator or author of the
work. There are, however, some exceptions to this rule. In some countries, for example,
the economic rights to a copyright work initially rest with the person/organization
employing the creator. In other countries the economic rights are deemed to be
automatically assigned or transferred to the employer. Contact your national IP office to
find out more about the particular national situation that interests you.

 Do I need authorization to use a work protected by copyright?

In general you always need authorization (this may take the form of licensing or an
assignment of rights) before using a protected work. For certain uses, the authorization
may come from a collective management organization instead of directly from the right
owner, for example the authorization to use a song at a public concert.

You may be allowed to use a protected work without any kind of authorization under two
sets of circumstances:
  Limitations and exceptions may exist at the national level, allowing you to use the
work.

 Works can also sometimes be made publicly available under specific conditions
or licenses that allow certain uses. When using such works, attention must be
paid to the specific conditions of the licenses in order to identify exactly what is
and isn’t permitted by the right owner. There are several such licenses in
common usage, e.g. the Creative Commons license, MIT License, the Mozilla
Public License, and many others.

If you are in doubt, it is always advisable to speak to an intellectual property attorney.

 How can I identify and get in touch with the copyright owner of a work?

As most countries do not impose any formalities on the provision of copyright protection,
locating the rights owner of a work can sometimes be difficult. Finding the rights owner
of a specific work in a territory is usually possible if you contact: the author or the
publisher or a work, the collective management organization, the local registry of works,
or the national copyright office. Such organizations may have databases that contain
valuable information about ownership of copyrighted works.

Collective management organizations may also assist you in obtaining authorization

from the right owner of a work.

 What are limitations and exceptions to copyright?

In some cases it may be possible to use works that are not in the public domain without
needing to request authorization from or remunerate the author or the right owner. This
can occur if such uses are covered by limitations and exceptions in the national
legislation. Examples of limitations and exceptions include:

 the quotation of works;

 the use of news of the day; or

 the creation of accessible formats for print disabled people.

Find out more about limitations and exceptions.

 What is “fair use”?

Differing legal systems mean that under some systems, a clear list of limitations and
exceptions to copyright is provided, whilst in others you may only find a general clause.
Such general clauses are frequently known as “fair use” or “fair dealing” clauses.

 What is a work “in the public domain”?

When a work is said to be in the public domain (also referred to as “commons”) what is
meant is that the work no longer has a right owner (of the economic rights). This is
usually because the term of copyright protection has expired. For example, the
economic rights over the famous poem Odyssey, written by Homer, have lapsed and
the work can be used or exploited without the need to obtain authorization or
remunerate the right owner. In some countries, authors can also voluntarily include their
works in the public domain through a procedure known as “voluntary
relinquishment”. Find out more about works in the public domain.

 Can I freely use works published on the Internet?

A common misperception is that works published on the Internet, including on social

media platforms, are in the public domain and may therefore be widely used by anybody
without the authorization of the right owner. Any works protected by copyright or related
rights – ranging from musical compositions, to multimedia products, newspaper articles,
and audiovisual productions – for which the time of protection has not expired, are
protected regardless of whether they are published on paper or digitally. In each case
you should, generally, seek the authorization of the right owner prior to use.

Some websites contain a general license that may exempt you from requiring a direct
authorization for certain uses. Such licenses may authorize only certain uses, for
example some non-commercial uses. In practice, with regards to a text publicly
available on a blog or a website for example, you may not use the text unless:

 such intended use is covered by the general license granted through that
website;

 the use is covered by a copyright limitation or exception; or

  you have obtained authorization for such use.

Similarly, authorization is required if your SME is engaged in publishing or making

available copyright works, sound recordings, broadcasts or performances through your
website.

 What are related or neighboring rights?

Related or neighboring rights are a separate set of copyright-type rights given to certain
persons or bodies that help make works available to the public. The beneficiaries of
related rights in national legislations are usually performers, producers of phonograms,
and broadcasting organizations.

The terms can also refer to rights given to persons or bodies, who produce subject
matter which, while not qualifying as works under the copyright systems of some
countries, contain sufficient creativity or technical and organizational skill to justify
recognition via a right similar to copyright.

Some laws make clear that the exercise of related rights should leave intact, and in no
way affect, the protection of copyright.
What is a trademark?
A trademark is a sign capable of distinguishing the goods or services of one enterprise
from those of other enterprises. Trademarks are protected by intellectual property rights.
How can I protect my trademark?
At the national/regional level, trademark protection can be obtained through registration,
by filing an application for registration with the national/regional trademark office and
paying the required fees. At the international level, you have two options: either you can
file a trademark application with the trademark office of each country in which you are
seeking protection, or you can use WIPO’s Madrid System.
What rights does trademark registration provide?
In principle, a trademark registration will confer an exclusive right to the use of the
registered trademark. This implies that the trademark can be exclusively used by its
owner, or licensed to another party for use in return for payment. Registration provides
legal certainty and reinforces the position of the right holder, for example, in case of
litigation.
How long does trademark protection last?
The term of trademark registration can vary, but is usually ten years. It can be renewed
indefinitely on payment of additional fees. Trademark rights are private rights and
protection is enforced through court orders.
What kinds of trademark can be registered?
A word or a combination of words, letters, and numerals can perfectly constitute a
trademark. But trademarks may also consist of drawings, symbols, three-dimensional
features such as the shape and packaging of goods, non-visible signs such as sounds
or fragrances, or color shades used as distinguishing features – the possibilities are
almost limitless.
What is an industrial design?
In a legal sense, an industrial design constitutes the ornamental or aesthetic aspect of
an article.
An industrial design may consist of three dimensional features, such as the shape of an
article, or two dimensional features, such as patterns, lines or color.
What kind of protection does an industrial design right offer?
In principle, the owner of a registered industrial design or of a design patent has the
right to prevent third parties from making, selling or importing articles bearing or
embodying a design which is a copy, or substantially a copy, of the protected design,
when such acts are undertaken for commercial purposes.
What kind of products can benefit from industrial design protection?
Industrial designs are applied to a wide variety of products of industry and handicraft
items: from packages and containers to furnishing and household goods, from lighting
equipment to jewelry, and from electronic devices to textiles. Industrial designs may
also be relevant to graphic symbols, graphical user interfaces (GUI), and logos.
How are industrial designs protected?
In most countries, an industrial design needs to be registered in order to be protected
under industrial design law as a “registered design”. In some countries, industrial
designs are protected under patent law as “design patents ”.
Industrial design laws in some countries grant – without registration – time- and scope
limited protection to so-called “unregistered industrial designs”.
Depending on the particular national law and the kind of design, industrial designs may
also be protected as works of art under copyright law.
How long does industrial design protection last?
Industrial design rights are granted for a limited period. The duration of the protection of
industrial designs varies from country to country, but it amounts at least to 10 years. In
many countries, the total duration of protection is divided into successive renewable
periods.
How are industrial design rights enforced?
Industrial design rights are usually enforced in a court, generally on the initiative of the
owner of the rights, as provided for by the applicable law. The remedies and penalties
vary from country to country and could be civil (injunctions to desist from an
infringement, payment of damages, etc.), criminal or administrative.
What is the difference between an industrial design right and a patent?
An industrial design right protects only the appearance or aesthetic features of a
product, whereas a patent protects an invention that offers a new technical solution to a
problem. In principle, an industrial design right does not protect the technical or
functional features of a product. Such features could, however, potentially be protected
by a patent. Find out more about patents.
What conditions must be met to obtain industrial design protection?
Depending on the applicable laws, independently created industrial designs must fulfil
some or all of the following criteria: novelty/originality.
The assessment of novelty and originality varies from country to country. In general, an
industrial design is considered to be new or novel if it has not previously been disclosed
to the public and it may be considered original if it significantly differs from known
designs or combinations of known design features.
How are industrial designs relevant to my business?
Industrial designs make a product attractive and appealing to customers. Design drives
consumer’s choice: the appearance of a product can be a key factor in the consumer’s
purchase decision. In other words, the success or failure of a product may rest, at least
partially, on how it looks. Industrial designs can therefore be very important for both
small- and medium sized enterprises (SMEs) and larger companies alike, regardless of
their sector of activity.
What are the advantages to my business of protecting my industrial designs?
The protection of industrial designs should form an integral part of any business
strategy. The main reasons to protect industrial designs are the following:
 Return on investments: Protection contributes to obtaining a return on
investments made in creating and marketing attractive and innovative products.
 Exclusive rights: Protection provides exclusive rights for at least 10 years, so as
to prevent or stop others from commercially exploiting or copying the industrial
design.
 Strengthen brands: Industrial designs can be an important element of a
company’s brand. Protecting industrial designs contributes to protecting a
company’s brand.
 Opportunity to license or sell: Protection provides rights that may be sold or
licensed to another enterprise, which will then be a source of income for the
owner of the rights.
 Positive image: Protection helps convey a positive image of a company, since
industrial designs are business assets which may increase the market value of a
company and its products.
  Reward: Protecting industrial designs rewards and encourages creativity.
What happens if I don’t protect my industrial design(s)?
If you don’t protect your industrial design(s) then it follows that you may not enjoy
exclusive rights to them. Consequently, your competitors may take a product to market,
incorporating your industrial design, without getting your permission.
So if a competitor or anyone else makes, sells or imports products bearing or
embodying a design which is a copy (or substantially copy) of your industrial design
without your consent, you will have no legal means to fight them. Moreover, it is likely
that copies of the industrial design will be sold at a lower price as competitors do not
have to recoup the investments made in the creative process. This could reduce your
market share for the product in question and be harmful both to your firm’s reputation
and to that of your products.
What is a trade secret?
Trade secrets are intellectual property (IP) rights on confidential information which may
be sold or licensed. In general, to qualify as a trade secret, the information must be:
 commercially valuable because it is secret,
 be known only to a limited group of persons, and
 be subject to reasonable steps taken by the rightful holder of the information to
keep it secret, including the use of confidentiality agreements for business
partners and employees.
The unauthorized acquisition, use or disclosure of such secret information in a manner
contrary to honest commercial practices by others is regarded as an unfair practice and
a violation of the trade secret protection.
What kind of information is protected by trade secrets?
In general, any confidential business information which provides an enterprise a
competitive edge and is unknown to others may be protected as a trade secret. Trade
secrets encompass both technical information, such as information concerning
manufacturing processes, experimental research data, software algorithms
and commercial information such as distribution methods, list of suppliers and clients,
and advertising strategies.
A trade secret may be also made up of a combination of elements, each of which by
itself is in the public domain, but where the combination, which is kept secret, provides a
competitive advantage.
Other examples of information that may be protected by trade secrets include financial
information, formulas and recipes and source codes.
What kind of protection does a trade secret offer?
Depending on the legal system, the legal protection of trade secrets forms part of the
general concept of protection against unfair competition or is based on specific
provisions or case law on the protection of confidential information.
While a final determination of whether trade secret protection is violated or not depends
on the circumstances of each individual case, in general, unfair practices in respect of
secret information include breach of contract breach of confidence and industrial or
commercial espionage.
A trade secret owner, however, cannot stop others from using the same technical or
commercial information, if they acquired or developed such information independently
by themselves through their own R&D, reverse engineering or marketing analysis, etc.
Since trade secrets are not made public, unlike patents, they do not provide “defensive”
protection, as being prior art. For example, if a specific process of producing Compound
X has been protected by a trade secret, someone else can obtain a patent or a utility
model on the same invention, if the inventor arrived at that invention independently.
Protection and legal framework
How are trade secrets protected?
Contrary to patents, trade secrets are protected without registration, that is, trade
secrets require no procedural formalities for their protection. A trade secret can be
protected for an unlimited period of time, unless it is discovered or legally acquired by
others and disclosed to the public. For these reasons, the protection of trade secrets
may appear to be particularly attractive for certain companies. There are, however,
some conditions for the information to be considered a trade secret. Compliance with
such conditions may turn out to be more difficult and costly than it would appear at a
first glance.
What are the requirements for trade secret protection?
In order for information to be protected as trade secret, it shall meet the following
criteria. The information must be secret (i.e., it is not generally known among, or readily
accessible, to circles that normally deal with the kind of information in question).
Absolute secrecy is not required. For example, trade secrets can be kept by several
parties, as long as it is not known to other persons working in the field. It must have
actual or potential commercial value because it is secret. It must have been subject
to reasonable steps by the rightful holder of the information to keep it secret (e.g.,
through confidentiality agreements). While the “reasonable” steps may depend on the
circumstances of each case, marking confidential documents, placing physical and
electronic restrictions to access trade secret information, introducing a systematic
monitoring system and raising awareness of employees are the measures taken to
safeguard trade secrets.
Example
A company develops a process for the manufacturing of its products that allows it to
produce its goods in a more cost-effective manner. Such a process provides the
enterprise a competitive edge over its competitors. The enterprise in question may
therefore value its know-how as a trade secret and would not want competitors to learn
about it. It makes sure that only a limited number of people know the secret, and those
who know it are made well aware that it is confidential. When dealing with third parties
or licensing its know-how, the enterprise signs confidentiality agreements to ensure
that all parties know that the secret information must not be disclosed. The company
should also take reasonable measures to keep the know-how secret, such as putting
access control and security measures in place and establishing internal procedures for
systematic controlling and monitoring of trade secret information. In such
circumstances, the misappropriation of the information by a competitor or by any third
party would be considered a violation of the enterprise's trade secrets. However, such
measures will only be effective if the products could not easily be “reverse
engineered” by competitors.
What are the rights conferred by trade secrets?
In general, trade secret protection confers owners the right to prevent the information
lawfully within their control from being disclosed, acquired or used by others without
their consent in a manner contrary to honest commercial practice.
While the determination of such practices depends ultimately on the circumstances of
each individual case, in general, unfair practices in respect of secret information
include industrial or commercial espionage, breach of contract, breach of
confidence and inducement to breach. It further includes the use or disclosure of a
trade secret by a third party who knew, or was grossly negligent in failing to know, that
such practices were involved in the acquisition of the confidential information.
In consequence, the use of a trade secret by a person who acquired that information in
a legitimate business transaction without negligence is not deemed illegal. For
example, a competitor may purchase a product, examine the construction or
composition of the product and extract the secret knowledge embedded in the product
(so-called reverse engineering). Such act is not violation of trade secret protection.
Is it possible to sell and license trade secrets?
Trade secrets are property rights and can be assigned or licensed to other persons.
The holder of trade secret has the right to authorize a third party to access and use the
trade secret information.
However, due to the secret nature of trade secret information, it is not always easy for
others to determine whether the information concerned meets the conditions for trade
secret protection. Therefore, compared with a patent, it is more difficult to transfer and
license confidential information and to resolve disputes which may arise. Since a
potential licensee needs to access the trade secret information in order to assess its
value or utility, a non-disclosure or confidentiality agreement needs to be signed
between the potential licensor and licensee. Further, in order to maintain the secrecy of
trade secret information, a trade secret licensor should require a licensee to
take reasonable steps to keep that information secret.
What are the remedies provided to the holder of secret information?
Most countries provide for remedies in criminal, administrative,
commercial and/or civil law, in particular, tort law, contractual law and specific
legislation on unfair competition.
In general, a trade secret owner can collect damages from the person who violated the
trade secret for the economic injury suffered. The trade secret laws of some countries
might also permit the use of injunctions, which requires the cessation of the use of any
products that have been created through the use of trade secret information contrary to
honest commercial practices. In some countries, for particular cases of trade secret
violation, criminal penalties are available.
What is the international legal framework of trade secret protection?
According to Article 10bis of the Convention for the Protection of Industrial Property
(Paris Convention), member States have to provide effective protection against unfair
competition. However, the Paris Convention does not mention or define trade secrets
beyond the general protection against any act contrary to honest commercial practices.
While the conditions for trade secret protection vary from country to country, some
general standards on trade secret law are found in Article 39 of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). According
to that Article, trade secret protection is available if the following conditions are met:
 The information must be secret in the sense that it is not, as a body or in the
precise configuration and assembly of its components, generally known among
or readily accessible to persons within the circles that normally deal with the kind
of information in question;
 It must have commercial value because it is secret; and
 It must have been subject to reasonable steps under the circumstances, by the
person lawfully in control of the information, to keep it secret.
WIPO Lex provides easy access to legislation with respect to trade secrets from a wide
range of countries and regions.
Why is trade secret protection necessary?
In countries with market economy systems, both in the developing and developed
world, fair competition between enterprises is considered as the essential means for
satisfying the supply and demand of the economy, and serving the interests of
the consumers and the society as a whole. Further, competition is one of the main
driving forces of innovation. The law of unfair competition, including trade secret law, is
considered necessary to ensure the fair functioning of the market and to
promote innovation by suppressing anti-competitive business behaviors.
Business and practical considerations
What are the advantages and disadvantages of trade secrets compared to
patenting?
There are essentially two kinds of trade secrets. On the one hand, trade secrets may
concern valuable information that do not meet the patentability criteria, and therefore
can only be protected as trade secrets. This would be the case for commercial
information or manufacturing processes that are not sufficiently inventive to obtain a
patent (though the latter may qualify utility model protection). On the other hand, trade
secrets may concern inventions that would fulfill the patentability criteria, and
therefore, could be protected by patents. In that case, the company will face a  choice:
to patent the invention or to keep it as a trade secret.
Some advantages of trade secrets include:
 trade secret protection is not limited in time (patents last in general for up to 20
years). It may continue indefinitely as long as the secret is not revealed to the
public;
 trade secrets involve no registration costs (though keeping the information
confidential may entail high costs in certain cases);
 trade secrets have immediate effect; and
 trade secret protection does not require compliance with formalities or public
disclosure.
There are, however, some concrete disadvantages of protecting confidential business
information as a trade secret, especially when the information meets the criteria for
patentability:
 If the secret is embodied in an innovative product, others may be able to inspect
it, dissect it and analyze it (i.e. “reverse engineer” it) and discover the secret and
be thereafter entitled to use it. Trade secret protection does not provide the
exclusive right to exclude third parties from making commercial use of it. Only
patents and utility models can provide this type of protection.
 A trade secret may be patented by someone else who developed the relevant
information by legitimate means, for example, inventions developed
independently by others.
 Once the secret is made public, anyone may have access to it and use it at will.
The more people know about the trade secret, the more difficult it will be to keep
it secret. Trade secret protection is effective only against illicit acquisition, use
or disclosure of the confidential information.
 A trade secret is more difficult to enforce than a patent. Often, it is quite difficult
to prove the violation of trade secrets. The level of protection granted to trade
secrets varies significantly from country to country, but is generally considered
weak, particularly when compared with the protection granted by a patent.
 Due to their secret nature, selling or licensing trade secrets is more difficult than
patents.
While patents and trade secrets may be perceived as alternative means of protecting
inventions, they are often complementary to each other. Often trade secret law
complements patent law in earlier stages of the innovation process by allowing
inventors to work on their ideas until they become a patentable invention. Moreover,
valuable know-how on how to exploit a patented invention in the most commercially
successful manner is often kept as a trade secret.
In which cases trade secret protection may be beneficial?
While a decision will have to be taken on a case-by-case basis, in the following
circumstances, it would be advisable to consider trade secret protection:
 
 When the subject matter which has been kept secret is not patentable.
 When the likelihood is high that the information can be kept secret for a
considerable period of time. If the secret information consists of a patentable
invention, trade secret protection could be attractive if the secret can be kept
confidential for over 20 years (duration of patent protection) and if others are not
likely to come up with the same invention in a legitimate way.
 When the trade secret is not considered to be of such great value to be
deemed worth a patent (though a utility model may be a good alternative in
countries where utility model protection exists).
 When the secret relates to a manufacturing process rather than to a product,
as products would be more likely to be reverse engineered.
 Before filing a patent and during the patent prosecution process until the patent
application is published by the patent office (generally after 18 months from the
filing date or the priority date).
It is important to bear in mind, however, that trade secret protection may be more
difficult to enforce in most countries, that the conditions for, and scope of, its protection
may vary significantly from country to country and that significant and possibly costly
efforts to preserve secrecy may be required. Further, it has to be kept in mind that, once
the secret is made public, the protection ends. WIPO Lex provides easy access to
national and regional legislation on patents, utility models, competition and undisclosed
information (trade secrets).
Which precautionary measures should be taken by business?
Trade secrets are widely used by business. In fact, many companies rely heavily on
trade secrets for the protection of their intellectual property (although in many cases,
they may not even be aware that trade secrets are legally protected). Known examples
are the Coca Cola formula and sources codes for software. It is important, therefore, to
make sure that enterprises take all necessary measures to protect their trade secrets
effectively. This includes:
 Firstly, considering whether the secret is patentable and, if so, whether it would
not be better protected by a patent.
  Secondly, making sure that a limited number of persons know the secret and
that all those who do are well aware that it is confidential information. For
example, such steps can include restricting access to buildings, marking
confidential documents and establishing IT security.
 Thirdly, including confidentiality agreements within employees’ contracts.
Under the law of many countries, however, employees owe confidentiality to their
employer even without such agreements. The duty to maintain confidentiality on
the employer’s secrets generally remains, at least for a certain period of time,
even after the employee has left the employment.
 Fourthly, signing confidentiality agreements with business partners whenever
disclosing confidential information.
What protection is provided against the use of secret information by employees
or former employees?
The business that holds the trade secret is responsible for making every effort it can to
keep it confidential. Employees can be required to sign agreements that protect trade
secrets. In particular, when contractors or employees leave, it is important to make sure
that they will not compete with the business after they leave, in addition to signing a
confidentiality agreement. Those agreements are known as confidentiality, non-
disclosure and non-compete contracts. If those agreements are violated, an
employee might face penalties, along with damages to the company. However, it has to
be kept in mind that those contracts should not restrict the contractor's or employees’
rights to earn a living.
Can more than one person have trade secret rights to the same information?
It is possible that more than one person or entities can claim rights to the same trade
secret on the same technology or commercial information if both independently
developed that technology and both take reasonable steps to keep it a secret, as long
as the technology is not “generally known”.