Can I create a new version of someone else’s idea?
How not to infringe a competitor's rights
Q. A competitor has opened up on our market with a new product and seems to be making a significant extra margin. What are our chances of designing round their idea and creating our own version?
A. Jacqueline Needle answers:
Most importantly, please note that you must not copy your competitor’s product. They will have copyright and unregistered design rights, and if you copy, you will infringe those rights. We also need to investigate whether the product is protected by registered rights, such as patents and designs. In that case, you may be prevented from marketing your own version, without permission from the competitor, particularly if there are patents in place. Patents protect a concept or idea (“the invention”), rather than the details of a product, and it is often difficult to circumvent them.
If you can come up with an innovative take on the competitor’s product, this could be patented in its own right. We could then try to negotiate a cross-licensing deal with the competitor, thereby gaining permission to market your own version of the product. Of course, in most cases this does not happen.
If the investigations reveal there are no registered rights, you can produce your own version. You will need to take the concept, but not the exact product, and then design your product from scratch. The best way to proceed is to find a designer who has no knowledge of the competitor’s product. Do not show him the product, nor describe it to him. Rather, ask the designer to come up with a new product to achieve a stated functionality. As you see, new products which are well accepted in the market provide increased profits. To avoid being on the back foot in the future, you should aim to come up with your own innovations. You can then use patents and designs to protect your new products and prevent competitors from jumping on your bandwagon.
Jacqueline Needle is a partner of Beck Greener, a London firm of patent attorneys. Jacqueline is an electrical and electronic engineer and experienced in patent drafting and prosecution. She also has a Litigator’s Certificate giving her the right to conduct litigation in IP matters in the English courts.