Protecting Your Products: Copyright, Patent, Trade Secrets, and Utility Models

Shark tank shows revolve around entrepreneurs and investors claiming that they’ve found the next million dollar product. Businesses of this nature often promise that their products are the best or are unique in form, function, or even design. 

But with the growing number of sellers and owners, some with similar products, how can one business truly stand out? And how can one be assured that their products were not copied by a different person?

A person stealing your product may damage your reputation and ultimately also “steal” your sales. Thus, protecting your products is extremely important. 

Luckily, there are laws when it comes to protecting authors, inventors, and business owners from the unlawful duplication, selling, and reproduction of their products.

A trademark is also another form of intellectual property that offers protection, but this time for logos and product names. You can read more about it here.

Copyright

Copyright is the protection of literary and artistic works, and is governed by the Intellectual Property Code (IP Code). 

These works may be books, articles, lectures, musical compositions, and paintings, but the list under Section 172 of the Intellectual Property Code is comprehensive enough to cover any work that is similar so long as it meets the requisites of originality and creativity. These kinds of works are known as “original works.”

The law also protects “derivative works,” which include translations, adaptations, and collections of literary works.

These works must be original and creative, but in line with the policy of protecting authors of creative works and encouraging innovation in the arts; the factors of originality and creativity are not high bars to overcome.

So if you’re concerned that your short stories or plays are not Palanca-worthy, this does not stop them from being copyrightable.

How to Protect Through Copyright

The innovative thing about copyright is that creative works are protected from the “moment of creation.” This means that when you write a poem at 2:00 a.m., an hour of the day when the IPO is closed, your work, even without being registered, is already protected.

Even without the registration, your work may already be protected from possible plagiarism and infringement claims when you post it on social media. 

But if you want the added assurance of your rights and the physical proof of your copyrighted work, then you can apply for copyright protection with the Intellectual Property Office (IPO).

For a work to be copyrighted, it must be registered with the IPO through physical submission at their office or through email.

You must fill out the Registration Form and attach a photograph or copy of your creation. Email or submit the completed form to the Intellectual Property Office with your work, and wait for them to evaluate your application.

If approved, simply pay the fee, which ranges from Php 200 to Php 625, and wait for them to award you the Certificate of Copyright. With that, your work is protected under the law of copyright.

You can find the full schedule of copyright registration, and other fees for copyright protection here:

Term of Protection of Copyright

A copyright is valid for the duration of the life of the author, and 50 years after their death.

Patent

A Patent is a right granted to “technical solutions of a problem” that protects inventors of products from people who try to reproduce them without any right. Patentable inventions may be products, processes, or improvements. 

In simple terms, when you think your product is an “invention” of sorts, you may have a product that can be patented.

Inventions can range from something incredibly high tech like a drone, or something simpler like a book stand.

What is important is that the invention meets the requisites of patentability:

1. it is new

2. involves an inventive step

3. is industrially applicable

An invention is new or novel when it does not form part of prior art.

When an invention has been made available to the public anywhere in the world before the inventor applies for his registration, it already forms part of prior art.

Prior art also consists of those inventions that are already under the application process filed or effective in the Philippines.

What patent examiners will do is compare your invention with previously registered or available inventions, and if there is none similar, then your invention is considered new.

The requirement of having an inventive step is met when “having regard to prior art, it is not obvious to a person skilled in the art at the time of the filing date or priority date.”

This means that whatever product or element you add to your invention, it must not be obvious to ordinary users of that invention, nor must it be a logical consequence of the previous invention. 

One example of an inventive step includes improving on the process of tile-making so that the produced tiles become more suitable for construction and ornamentation, like in the case of Aguas v. De Leon.

Lastly, the requirement of industrial applicability is met when the invention can be produced and used in any industry.

How to Protect Through Patent

Patent protection has a registration process with the IPO. Unlike in Copyright, it is only upon the registration of an inventor’s patent that grants them the exclusive right to produce, license, and sell their product. This means that any person who attempts to sell a product that copies a patented invention becomes liable for patent infringement.

The IPO allows online registration for patents. First, the applicant must conduct a patent search to check if there are any similar patents or products that have been registered. If there are none, the applicant is ready to file their product. The IPO’s website will ask for the details of your invention, your details as the inventor, and other documents. 

Once you’ve filled these out, pay the initial filing fee which ranges from Php 2,000 to Php 4,320 and wait for the results of your application.

In the United States, the government allows inventors to file provisional patents. These provisional patents do not yet declare or make a formal claim of their invention, but will nonetheless allow them to have first filing priority internationally. This protects their patent claims around the world.

The IPO’s examiners and engineers will be the one to check if your product meets the requirements of patentability.

You can find the full schedule of patent registration and examination fees here.

Term of Protection

A patent registration is valid for 20 years in the Philippines, with no possibility of renewal.

Trade Secrets

Unlike Copyrights and Patents, Trade Secrets are not covered by the Intellectual Property Code, nor are there other laws specifically covering trade secrets. What the IP Code does have is protection against undisclosed information, but neither defines it nor outlines the rights of authors who may have a protected right under the provision. 

In fact, a report from the Geneva Network recommends that officials clear up this ambiguity in order to protect competing companies. To an extent, trade secrets find protection in the Philippines under the Rules of Court and under Sections 291 and 292 of the Revised Penal Code. 

The Rules of Court state that motions of production of confidential information will not lie against trade secrets, while the Revised Penal Code criminalizes the unauthorized revelation of secrets or confidential information.

Trade secrets are also protected internationally. The World Intellectual Property Organization says that to qualify as a trade secret, the information must be:

1. commercially valuable, 

2. known only to a limited number of persons, and 

3. be subject to reasonable steps taken to ensure confidentiality. 

Trade secrets are often associated with restaurants. Members of the food and beverage industry will protect the recipes of their best-selling items (and even the whole menu) through contracts with whomever they employ. 

It becomes more relevant as well, with the growing number of home chefs and bakers who sell their food online and in small kiosks. 

Other trade secrets may include the chemical components of industrial solvents or even a specialized customer list that luxurious brands make their sales to. 

How to Protect Trade Secrets

Since trade secrets are not governed by specific laws, there is no process of registration for them. What companies and employers will do is protect trade secrets through contracts and non-disclosure agreements. The law that governs these agreements is the New Civil Code on Obligations and Contracts. 

A contract is a meeting of the minds between two persons where one agrees to give something or render some service. There must be consent between the two parties, an object certain which is the subject matter of the contract, and the cause of the obligation.

People are free to enter stipulations in the contract to ensure the protection of their product, such as including non-compete clauses or imposing additional penalties for its unauthorized disclosure. Non-disclosure agreements are a popular form of contracts for this purpose.

Term of Protection of Trade Secrets

Since trade secrets are governed by contracts, their term of protection would be subject to the stipulations of the party.

Utility Models

A utility model is an offshoot of the patentable invention. These are those products that are new and industrially applicable, but may not necessarily contain an inventive step. As such, the comprehensive examination to determining the inventive step requirement in patents is not done in utility models.

Patents and utility models are so similar that the law allows, upon the payment of a fee, the conversion of one to the other before the application is granted or refused. 

Those concerned that their patent application may not meet the high technical threshold of patents may decide to register their invention as a utility model instead.

The rights of the inventor of a utility model similarly include exclusive rights to produce, sell, and assign their products. 

How to Protect Utility Models

The IPO also allows for online registration of utility models. The applicant must first conduct a search on the IPO’s online database for any duplicate of their products. The inventor can then proceed to the online application, where they can register the details of the model.

The IPO will send a statement of account containing the amount of filing fees. After paying, the application is submitted and the author can now wait for the result of his registration.

Term of Protection of Utility Models

Registration for utility models is valid for 7 years, with no possibility of renewal. 

If you want to learn more about the law and get assistance protecting your business, be sure to check out digest.ph. 

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