I’ve started a landscape gardening business and developed a certain process in the design and creation of what clients want. I’ve noticed that a rival has started using the same process. Is it possible to patent particular processes and ways of doing things, or do I just have to suck it up and deal with it?
As usual with these technical IP issues, I had a chat with Tim O’Callaghan my IP specialist colleague down the hall and here is what we have to say.
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Patents provide a monopoly for a manner of manufacture which is novel and not obvious (ie. it involves an inventive step) when compared with what has been written about or done before the date when the patent was applied for.
It is possible to obtain a patent for an apparatus, or for processes and methods of doing something, provided it meets those criteria.
So it is possible to have a patent that covers new and inventive processes used by a landscape gardener.
That said, you must apply for a patent before you begin to use the invention in a commercial way.
Otherwise, your own act of using the invention in a commercial way means that it has already been done before you apply for the patent.
That is, your own actions may rob the invention of novelty. Some countries allow a six to 12 month grace period which can save you if you apply for the patent after commercialising the invention, but you should try to avoid needing this if you can help it.
If you have already started using the processes in a commercial way, it may be too late for you to apply for a patent, but see your lawyer or patent attorney to double check.
Patents provide the owner with an exclusive right to exploit the invention described in the patent for 20 years.
However, the patent must fully describe the invention, and is published for all to see. It is permissible for others to use the information in the patent to do a similar thing and/or to reach the same result.
The patent rights are breached if a person copies all of the essential elements which are set out in the patent.
If someone copies some of the essential elements but not others, there is no infringement.
Patents apply only in the countries where they are applied for. It is possible to file an application for a patent in Australia, and then delay filing in other countries for up to 18 months.
Filing patents in countries is an expensive business, so you need to be sure that you can make money out of the invention.
Because the filing of a patent involves disclosing all of the elements of the invention, sometimes people decide not to apply for a patent, but rather try to keep the invention secret.
This is a good decision if it is impossible to discover the secrets in the invention, say by reverse engineering, or by watching how you do it.
If you think you are different to other landscape gardeners because of your processes, you might consider other forms of IP protection.
You might build a reputation around your new processes, and protect this reputation using trademark registration.
Alternatively, you might make sure that your processes are kept secret or are the subject of copyright.