Author AlexanderAlUS 
 Source Wikimedia
Creative \Commons Licence

Jane Lambert

8 Aug 2016

The best way to keep a technical advantage is to keep it secret. That can be done indefinitely in the case of beverages and a few other items that cannot easily be reverse engineered. The recipe for Chartreuse has been kept secret since 1737 and that for Coca-Cola since 1886. If such a secret is imparted to others in confidence, the recipient of the information known as the confidante is obliged not to use or disclose it without the permission of the confider by a common law or judge-made doctrine known as the duty of confidence.

That duty, however, comes to an end once the information becomes generally known provided that is not the result of a breach of duty by the confidante.  Such information may be discovered through parallel research and development work by a competitor or by purchasing a product on the market and dismantling or analysing it to see how it works. Such dismantling or analysis is known as reverse engineering and it is usually permissible.

One way to prevent reverse engineering is to apply for a patent (see What is a Patent?).  Patents are monopolies of the manufacture, marketing and use of a new product or the use of a new process and the marketing of its products for up to 20 years. They are available for inventions that are new, inventive and useful and do not fall within a number of restricted categories. Patents are granted for the UK by the Intellectual Property Office ("IPO") in Newport or the European Patent Office ("EPO") in Munich. Although patents granted by the EPO are called European patents they cover only individual countries. There is as yet no such thing as a world patent or even a European Union patent though there are advanced proposals for the EPO to grant a European patent for most of the member states of the EU including the UK to be known as a unitary patent (see Jane Lambert  Preparing for the Unified Patent Court 23 Jan 2016 NIPC Law). Those proposals have been put at risk by Brexit (see Jane Lambert What Sort of IP Framework do we need after Brexit and what are we likely to get? 3 July 2016 NIPC Law).

Some technical advances such as mathematical methods, methods of doing business, computer programs and the presentation of information as such cannot easily be patented in this country. If they can be kept secret their developers can rely on the law of confidence or, failing that, copyright to prevent their reproduction and loading and running on computers.

Seeds and other reproductive material for new crops and other plants can be protected against unlicensed propagation by EU and UK plant breeders' rights.

Mechanical and circuit designs can be protected from unauthorized reproduction by unregistered design right. An extended form of unregistered design right also protects semiconductor topographies.

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