Intellectual Property Essentials for Green Entrepreneurs
The current prominence of the sustainability movement has long been recognized by entrepreneurs. The broad definition of sustainability carries within it the question of "How can we do this better?" with the emphasis on leaving for the future the resources to which future generations are entitled.
The current prominence of the sustainability movement has long been recognized by entrepreneurs. The broad definition of sustainability carries within it the question of “How can we do this better?” with the emphasis on leaving for the future the resources to which future generations are entitled.
The question of “How can we do this better?” has also been the fuel for the intellectual property engine in the United States since the beginning of the U.S. patent system, and even before that in the English and Colonial systems. Thus, two essential components of protecting the new growth industries in sustainability are the patent system and the trade secret protections available to the companies developing and refining new technologies. The following paragraphs provide only an absolute minimum of what the sustainability entrepreneur or any other entrepreneur should know.
First, neither patents nor trade secrets come into existence or are enforceable on their own. This means that the entrepreneur has to take affirmative steps to be able to claim the protected technology as his exclusive commercially viable property. For trade secrets, the name implies some fundamental basics: the information must be such that it is commercially valuable and the information or how it is used must, in fact, be secret, at least to others in the same industry. Although trade secret law is generally state law, the model trade secret act makes it clear that the owner of a trade secret must have taken reasonable precautions to maintain the information in secrecy. This may include such activities as restricting access to facilities and projects where competitors would have the ability to learn the information. There may be some cases in which the trade secret laws are wholly applicable to trade secrets pertaining to sustainability–for example, where a specific process is used for remediation of the environment and that process is performed by specialists. However, on a larger scale, sustainability depends on the greatest number of people having the information to enable them to practice the technology. Thus, where it is necessary disclose the technology to make it truly useful, trade secret protection may not be available.
As with other entrepreneurs, the sustainability entrepreneur may also turn to the patent system to try to protect the new or improved technology. While trade secrets are creatures of what information the owner chooses to protect by implementing his secrecy measures, the patent system requires that the innovator disclose his information on his technology, and only if that technology is novel and not obvious in the view of the Patent Office does he gain protection in the form of a patent issued by the government. It is important to understand that the right to obtain a patent is lost by the passage of time — in general, under U.S. law an invention that is publicly known, publicly used, offered for sale or described in a printed publication will lose its novelty and thus the right to be claimed in a patent in 365 days. Thus, the longest period that an inventor can delay in filing an application for a patent is one year after he has completed the invention. Further, if the inventor thinks the invention is globally important, the laws of most foreign countries require that there be no disclosure of the invention prior to filing an application for patent.
Accordingly, it is essential for the sustainability entrepreneur to keep your information to yourself until you determine how it can be protected, and keep your eye on the calendar as to when you must act if you seek to patent the technology.