Head of Department / Patent Attorney / Mechanics Engineer
How to protect an idea?
Every day, we are faced increasingly with the problem with which our clients come, writeor call us, namely, how to protect an idea? In order to answer this question, let us at first turn tothe dictionaries and find out: what does the term “idea” mean?The idéa (in ancient Greek ἰδέα means a “type, form; prototype”) in a broad sense meansa mental prototype of some action, object, phenomenon, principle, highlighting its main,predominate and essential features. To put it simply, the idea means a fundamental thought. As arule, the idea is also understood as a new thought that has arisen in your head, which isassociated with some actual problem at the moment.The idea itself carries no value, so how is it possible to protect the thoughts that are in thehead and that are known only to you? It is not possible to protect them in any way, and indeed, inmy opinion, there is no need to so. If there is a desire to protect something, it is necessary to lookfor opportunities to implement the idea into reality, because it acquires some value only in suchform, and if there is no desire or opportunity to implement, then, unfortunately, it is necessary toprovide others with such opportunity.What does the law say on that? According to Paragraph 5 of Article 1259 of the CivilCode of the Russian Federation copyrights shall not be extended to ideas, concepts, principles,methods, processes, systems, means, solutions of technical, organizational or other tasks,inventions, facts, programming languages, the geological information on mineral resources.Indeed, during the moment, when the idea is still in your head, nothing can be extended to it andit cannot be protected. The thought is not material, hence it cannot be protected. Therefore, inorder to obtain an opportunity to protect the idea, it should be materialized.It is possible to materialize the idea by uttering it, describing it, expressing it in any otherobjective form, so if you have succeed in doing so, it means that you have already created a work– the result of intellectual activity or, in other words, intellectual property.According to Article 1225 of the Civil Code of the Russian Federation, the results ofintellectual activities and means of individualization of legal entities, goods, works, services andenterprises equated to them, which the legal protection (of intellectual property) is provided to,shall be:1) scientific, literary and artistic works;2) programmes for computers (computer programmes);3) databases;4) performances;5) sound recordings;6) broadcasting and cable radio and television programmes (the transmissions ofbroadcasting or cable organizations);7) inventions;8) utility models;9) industrial designs;10) breeding achievements;11) topographies of integrated circuits;12) production secrets (know-how);13) company names;14) trademarks and service marks;15) the appellation of the origin of goods;16) commercial designations.
It should be noted that intellectual property is protected by law.If you have created a work of science, literature and art, it shall be subjected to thecopyright. According to Paragraph 2 of Article 1228 of the Civil Code of the Russian Federation,the author of the result of intellectual activity holds the right of authorship.If you have an idea of a technical nature, and you express it in the form of a technicalsolution or an object, then the patent rights may be extend to them. In other words, the idea canbe protected in some particular manifestation, expression. Thus, once you expressed an idea, assoon as it appeared and was implemented in some particular technical solution, can we talk aboutits protection. However, how can one protect his idea?For the majority of the ideas, the most convenient is the protection, implemented byprotecting the copyrights of the works, where these ideas are expressed. The law defines thecopyrights as the intellectual property rights for works of science, literature and art. These rightsshall be, according to Article 1255 of the Civil Code of the Russian Federation:1) the exclusive right to the work;2) the right of authorship;3) the author's right to the name;4) the right to integrity of the work;5) right to publish the work.At the same time, it should be noted that the exclusive right is a property right and otherrights are nonproperty rights.According to Article 1257, the author of the work of science, literature or art shall be acitizen, by whose creative work it has been created. The person indicated as an author on theoriginal of the work or on its copy, or otherwise, according to Paragraph 1 of Article 1300 of theCivil Code of the Russian Federation, shall be considered to be its author, unless otherwise hasbeen proved.Not any registration of the work or compliance with any requirements is required for theoccurrence, implementation and protection of the copyrights. However, with regard to computerprogrammes and databases, the Right Holder during the period of validity of the exclusive rightto the computer programme or database may, at his discretion, register such programme ordatabase in the federal executive body for intellectual property. The result of the registration is aState certificate confirming your copyrights.Although the law does not require the state registration of the copyrights, it is notexercised, and no other registration is provided for, however, the majority of authors areincreasingly trying by any possible ways to confirm their authorship by registering their “works”at least somewhere. So, for example, literary works are published in publishing houses byassigning the date of publication, the date of receipt of the work, etc. A great number of worksare currently registered in the RAO (Russian Authors Society) with the assignment of a numberand a date. These registration information is often used by the authors in case of disputes and inorder to prove their rights, for example, in court. In other words, it is evident from practice thatthe registration of the rights in any form of registration is very desirable for an author.The copyright subject matters shall be works of science, literature and art, regardless ofthe merits and the purpose of the work, as well as the way of its expression:literary works;dramatic or dramatic-musical works, script works;choreographic works and mime shows;musical compositions with or without a text;
audiovisual works;painting, sculpture, graphic, design, graphic stories, comics and other works of art;artistic craftsmanship and scenographic works;works of architecture, city planning and landscaping, including designs, drawings, imagesand models;photographic works and works produced by the methods similar to photography;geographic and other maps, layouts, sketches and plastic works that relate to geographyand other sciences;other works.The copyright subject matters also include computer programmes, which are protected asliterary works.The ideas with a technical content also can be protected by the protection of the copyrightworks, but only at a very early stage of their development, until certain technical elements,features, characteristics appear. With the appearance of such features it is already possible tospeak about a technical solution. If the existence or implementation of these technical featuresleads to any technical effect, property, or a manifestation of some phenomenon, it is necessary toconsider about the possibility of patenting. Patenting of technical solutions is carried out in theform of an invention, utility model or industrial design, and it is the most effective way to protecttechnical solutions and developments. The patented technical solutions shall be registered in thestate register and shall be protected by the state. However, a number of serious requirements areimposed on the patented technical solutions, this is, first of all, a world novelty, an industrialapplicability, and for the inventions such requirement is the compliance with an inventive step.As inventions, according to the current patent legislation, a technical solution in any arearelated to the product (in particular, a device, substance, strain of microorganisms, plant oranimal cell culture) or a method (the process of carrying out actions over a material subjectmatter by material means) including to the use of the product or method for a particular purposeshall be protected.As a utility model, the technical solution related only to a device shall be protected.As an industrial design, the implementation of the appearance of an industrial orhandicraft product, namely a design, shall be protected.To protect the ideas, it is also possible to use a know-how regime, namely, a productionsecret. In other words, it is necessary to create the conditions in which the information about theidea will be known only to a certain narrow circle of persons. However, in the majority of cases,for the ideas, the use of such protection is ineffective and useless, because it hinders theirdevelopment and implementation.