The results of research and
development work can be safeguarded in several ways. In many cases, the most
effective way is simply to keep it under wraps. The law of confidence
prohibits unauthorized use or disclosure of secret technical information the
release of which could prejudice the competitive advantage of the
party that gathered such information. The problem with confidentiality is
that the competitive advantage is usually lost as soon as a product, process
or service embodying or applying the technology is put on the market because
it can often be reverse engineered. Alternatively, a competing research team
may hit on the same solution because it does the same work. Information that
enters the public domain or is acquired otherwise than through unauthorized
use or disclosure of information imparted in confidence ceases to be
protected by the law of confidence. However, there are some products, such
as food or drink made to a secret recipe that cannot easily be reverse
engineered, that can be protected by the law of confidence for decades if
not centuries.
The alternative to keeping a technology secret is broadcast it to the world
in exchange for a temporary monopoly of the manufacture, distribution,
importation and use of the monopoly known as a "patent". Patents are
available for new inventions, that is to say products or processes. Computer
programs and methods of doing business as such are expressly excluded from
the definition of invention in the UK as they are in the other states that
are party to the
European Patent Convention ("the EPC") which include
all the other member states of the European Union. Patent protection is
therefore very useful for manufacturing industries but much less so for the
service and information, communications and technology industries which now
account for a great and increasing part of the GDP of most advanced
countries. To qualify for patent protection, an invention has to be "new",
"inventive" and "useful" and fall outside the scope of any of the
exclusions. It also has to be described in sufficient detail for a person
with the necessary skills and knowledge to be able to make the invention. In
most states the agency that examines applications for patents is known as
"the patent" or "intellectual property office". Patents for the UK alone are
issued out of the
http://www.ipo.gov.uk in Newport. Alternatively, patents for the UK
and/or one or more other parties to the EPC can be issued
out of The European
Patent Office ("the EPO") in Munich. Patents
issued by the EPO are known as "European Patents".
Although some inventions embodying computer software can still be patented
in Europe provided they meet the requirements for patentability mentioned
above, copyright and the law of confidence are the usual ways of protecting
software in the UK and rest of the EU. Copyright prohibits copying of any
part of an application including the arrangement and organization of the
suite's components, screen output, manuals and in some cases data as
well as the code itself. The law of confidence protects unauthorized use and
disclosure of the source code including comments and programmers notes so
long as the programmers or their employers keep such materials secret.
Many legal systems provide a limited form of monopoly for new inventions
known in most countries as "utility models" but as "short term
patents" in Ireland and "innovation patents" in Australia. Something similar
is said to have existed in the UK in the late 19th and early 20th centuries
as a result of design registration for functional designs. The
reintroduction of utility models into the UK has been contemplated at
various times but has always been rejected. The approach taken in the UK
since the 1960s has been to protect the shape and configuration of articles
and parts of articles including mechanisms and electrical circuitry
indirectly by artistic copyright in design drawings until 1989 and
subsequently by unregistered design right. An extended form of
unregistered design right protects semiconductor topographies.
New varieties of seeds and plants are protected by a sui generis right known
as "plant breeders' rights". New plant varieties may be registered with
Plant Variety Rights Office for the UK and the Community Plant Variety
Office for the EU.
