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Are you small, American, IP-ish and in business? If so, read on ...

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

It's so strange to see a familiar problem when it's viewed from the other side.  European commentators and analysts have long made deeply concerned clucking noises about the fate of small (often but not exclusively British) businesses that set out bravely to trade in promising foreign markets, only to find that their IP rights -- which work quite well at home -- aren't particularly useful in countries where they don't actually have them.   Funnily enough, small American businesses that set out bravely to trade in promising foreign markets have many of the same problems.  This is apparent from a quick glance at the United States Patent and Trademark Office (USPTO) Small Business web pages, which are boldly, if not entirely fairly, decorated with the STOP-FAKES.GOV sign depicted on the right.  Why is it "not entirely fair"? Because a great deal of the loss is likely to derive from copying which isn't unlawful because it's done in a country in which local IP rights have not been secured -- though goods made lawfully in this manner can slip into markets where IP rights exist and, being sold on the cheap, cause damage to brand owners and product originators while racking up handsome profits for those who deal in them. Anyway, what does the USPTO have to say? Let's take a look at the site's front page:

"Are you a small business?

Welcome
Success in a global economy depends more and more on intellectual property (IP) assets. In fact, IP-based businesses and entrepreneurs drive more economic growth in the United States than any other single sector [We like to take this as axiomatic, but a model that adequately accounts for vague variables like "IP-based", "businesses and entrepreneurs" and "growth" make sectoral comparisons hard within each jurisdiction, and as between jurisdictions].

Unfortunately, intellectual property has captured the attention of pirates and organized crime. Today, piracy, counterfeiting and the theft of intellectual property pose a serious threat to all U.S. businesses. Industry estimates of the cost of such theft range from $250 billion to 750,000 jobs per year. These threats to ongoing invention and innovation make it important to consider securing IP protection, whether you're a major multinational firm or a 1-person home business.

Small businesses. Big questions.
While every IP-based business is vulnerable to piracy and counterfeiting, small businesses can be at a particular disadvantage because they lack the resources and expertise available to larger corporations [apart, that is, from the lucky few who become trolls?]. Small businesses may also often lack the familiarity with the process of protecting intellectual property: research conducted in the spring of 2005 by the U.S. Patent and Trademark Office (USPTO) indicates that only 15 percent of small businesses that do business overseas know that that a U.S. patent or trademark provides protection only in the United States [The IPKat wonders whether this figure, low as it seems, is higher than in less commercially-savvy jurisdictions. It would be good to follow this up at regular intervals, with non-US comparators].

It has never been more essential for you to consider patenting your idea or registering your name as a trademark, especially if you are a small business owner or are starting a small business.

The USPTO has created this Web site to help small businesses consider the benefits of strong IP protection - both in the United States and overseas [not much use for Canada and Mexico, then, muses Merpel] - and decide whether it is right for them.

This site includes important information on whether and when to file for intellectual property protection, what type of protection to file for, where to file, and how to go about it".

Once you're into the heart of the site, the information is clear, crisp, largely US-centric (which is reasonable to expect if the website hadn't mentioned the "overseas" bit) and in some cases debatable. For example,

"A patent for an invention is the grant of a property right to the inventor. Patents are granted for new, useful and non-obvious inventions for a period of 20 years from the filing date of a patent application, and provide the right to exclude others from exploiting the invention during that period.".

The Kat wonders how many countries grant an outright 20 year protection.  In most jurisdictions with which he is familiar, many or most patents lapse, die or are revoked in around half that time.  Merpel adds, when this site is further developed, it would be good to see something about licensing on it.  She couldn't find the "l' word anywhere she looked and, because small businesses often lack the resources either to develop their own innovations or to sue others for infringing their rights, licence-based business models can be really valuable.

Thanks, Leason Ellis, for your Tweet which alerted the Kats to this item.

Full post as published by IPKat on October 06, 2010 (boomark / email).