IP Protection

It is important to have a strategy to protect your technology or design before you do business in China. There are various ways you can protect your IP in China. Design Patent and other patent, trademark, copyright, and trade secret protection are typical ways.

Intellectual property (IP) can be anything from a particular manufacturing process to plans for a product launch, a trade secret like a chemical formula, or a list of the countries in which your patents are registered. It may help to think of it as intangible proprietary information. The formal definition, according to the World Intellectual Property Organization is creations of the mind — inventions, literary and artistic works, symbols, names, images, and designs used in commerce. IP includes but is not limited to proprietary formulas and ideas, inventions (products and processes), industrial designs, and geographic indications of source, as well as literary and artistic works such as novels, films, music, architectural designs and web pages.

Integrate IP strategy with your business plan and get advice

Whatever strategy you adopt to protect and exploit your IP, it should be integrated into your business plan. Explore all the options available and seek professional advice.

Combining registered and unregistered rights

You can combine registered and unregistered rights to optimise IP protection for your business. These may involve using trade secrets and confidentiality agreements together with registered rights, such as trade marks and designs.

Not every piece of IP you own will warrant the cost and time required to formally register it. You may determine it is better to get your product into the market as soon as possible instead of waiting for full protection from a patent, for example. However, other IP you own might be critical to your business success and require the benefits provided by registered rights. It is your IP, your business strategy and ultimately your decision.

Importance of secrecy

For patents and designs, one of the key criteria is that the invention or design must be new. This means that it cannot have been disclosed to the public. For example, if you included your new design in a catalogue then filed a design application, it would not pass the 'new' test. Similarly if you gave a presentation at a conference explaining your invention, it would also fail the 'new' test in any subsequent patent application.

If you are interested in obtaining a patent or design, you need to safeguard and maintain secrecy until you have filed your application. You may determine that keeping the full details of your invention secret is of greater benefit than applying for a patent and having to disclose the invention's details. Protection in this manner is known as a trade secret. A good example is Coca-Cola. The creators decided against applying for a patent as they would have to declare the formula for the drink, so they went down the trade secret path.

Secrecy is the key. The protection is really only valuable whilst the secret holds. Confidentiality agreements are recommended for those who have knowledge of the secret. Confidentiality agreement is also called non-disclosure agreement(NDA), covering non-circumvention and non-use clauses.

Always consult a Chinese lawyer before you doing business in China. We can provide you with valuable information and advice.

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