Know How To Have An Unseen Advantage

It’s been many weeks since folks in Malaysia have been told to return to their hidey-holes. On the other side of the world, people in the US and UK are slowly being allowed to leave the safety of their nests. You don’t have to be an infectious diseases expert to know why: many developed nations have vaccinated most of their population while the rest of us are still waiting for our vaccine dropships to arrive. Since R&D and clinical trials are usually the hardest and most time-consuming part of vaccine production, now that that’s done and dusted, why is it that most people around the world are still not getting the lifesaving jabs?

To many observers, the culprit behind the delay is none other than Patents! As the vaccines and the processes behind them are mostly patented, no one apart from the patent holders (and a few licensees) are allowed to make these vaccines. Accordingly, there are increasing calls for a temporary waiver of these patent rights to boost production of vaccines.

However, putting the blame solely on patents is an oversimplification. There are in fact many factors at play, causing the disparity between the ‘haves’ and ‘have nots’, and one less-talked-about factor is the Know-How on vaccine production. While many are familiar with patents, trade marks, designs and copyright, not many are aware that the knowledge on how to do things or ‘Know-How’ is also a form of Intellectual Property.

Pretend, if you can, that the following is true: Gordon Ramsay invented the Beef Wellington dish and his recipe which you can find on his website is a patent. Now, all the necessary steps and ingredients for the dish are already included in the recipe. But unless you have the skills, talent, and the years of cooking experience of a master chef, it is likely that your Beef Wellington will not be gracing the covers of food magazines any time soon. The missing pieces in your under-baked Beef Wellington? It’s the Know-How.

Similarly, some vaccines like Malaysia’s No. 1 preferred Pfizer-BioNTech vaccine are based on cutting-edge technologies that not many people are experts on. Even with access to patent disclosures, raw materials, and production facilities, without the right Know-How, there is no guarantee that a viable vaccine will be produced. And like the jealously guarded secrets of a Kung-Fu master, the companies behind these vaccines are unlikely to pass on their critical secrets or hidden techniques for fear that the student may one day surpass the master.

It’s in times like this that the value of Know-How becomes apparent. However, in order to keep one's edge in a competitive world, one must know how to protect one's Know-How (see what I did there? ;)). The thing about Know-How is that it can be in the form of transferable and non-transferable skill, knowledge, or expertise. Transferrable Know-How such as information and methods of doing things are not patentable subject matter, nor is copyright sufficient protection as it only protects the literary expression of the information and does not prohibit others from acting on the information.

How Know-How is protected is the same as how anyone would keep a secret, but in this case the Know-How would be protected as a Trade Secret. Some would hide it in the deep recesses of their mind or keep the steps under lock and key. If the Know-How relates to a process, that process may be performed in a restricted-access area only. Employees or partners with access to the Know-How should also be sworn to absolute secrecy on pain of death (normally through Non-Disclosure Agreements).

Don’t know how you can protect your Trade Secret? Why not give us a holler? After all, we know how to help (sorry...).

The Trademark Registration that turned into a PR Nightmare

Nothing unites us Malaysian quite like food. Food, especially local food, is sacrosanct, and any perceived slights (e.g. when Singapore/Indonesia claims to have invented any of our beloved grub) will invariably be met with unabated fury!

While we've come to expect such sacrileges from our neighbours, we certainly didn't expect one of our own to stray so far from the generally accepted standards of food ethics.

A few months ago, local celebrity Neelofa's mum landed in hot soup when she attempted to register "Harimau Menangis" as a trademark. For the uninitiated, harimau menangis (or "suea rong hai" in Thai) is a well-known Northeastern Thai dish of rare beef brisket flavored with spices. Mayhem ensued when local netizens caught wind of the registration attempt. The resultant backlash eventually forced Neelofa's mum to withdraw the trademark application.

Outside of Malaysia, numerous attempts to register generic words/phrases as trademarks have also invited ridicules and even ire, e.g. Subway's failed attempts to trademark the word "footlong"; the former POTUS's attempt to trademark the phrase "you're fired"; and Ohio State University's attempt to trademark the word "THE"!

The lesson here? Trying to register a generic word or phrase as a trademark will usually make you look like a money grabbing troll and will most likely end up a PR Disaster!

Apt IP For Your App

These days, one can almost always find a mobile application (or app in short) for just about any task you can think of. For example, there's an app to help you find your future spouse, one that helps you find wife no. 2 – 4, an app to help you cheat on your spouse(s) and one to catch that cheating lil douche.

App creators may have plenty of ideas for apps, but when it comes to protecting the intellectual property that is related to the app, some may be at a loss as there are normally more than one form of intellectual property right (IPR) involved.

Copyright

If your app contains any original video, images, tunes or text, these can be protected under copyright. While it may not be obvious to some, software code is considered to be a literary work and thus also eligible for copyright protection.

The good news is, copyright protection comes into existence upon the completion of the work, provided that the work is original, i.e. none other like it has ever existed before. Unlike other forms of IP, registration is not required for a copyright to come into effect.

The bad news: Just as there are many ways to skin a cat, there can be many ways of writing software code to achieve the same function, so you can have many different apps that do the same thing and not infringe each other’s copyright. As such, copyright is more useful in stopping others from copying or pirating your app than preventing others with coming up with a similar app.

Similarly, if other apps use graphics, artwork, video or sounds that are thematically similar to yours, it’s unlikely that such use is infringing unless copying of your original content was involved.

Trade Marks

The name of your app and its icon can be the subject of a trade mark registration. With trade mark registration, you can stop others from putting up apps with confusingly similar names/icons that may divert users away from your app. Imagine if you have an ASMR app named ‘Kurma Whispers’ that proves itself a hit with pandemic-fatigued work-from-homers. With trade mark registration, you can stop copycat apps with names like ‘Bisikan Kurma’ or ‘Whispering Kurma’ from coming into play.

Since trade mark registration is territorial, you will want to also register your trade mark in countries outside of Malaysia where your app is available to help you assert your trade mark rights in those countries.

Patents

Let us lay the facts straight. Apps cannot be patented. In many jurisdictions, software is considered a purely mental act/method of doing something which is not patentable subject matter. This is because at a basic level, software is merely a set of instructions that are carried out to achieve an intended result.

What can be patented, though, are inventions that are realized using apps, or in other words, a technical solution which is achieved through use of the app. So you don’t patent an app for online payments, you patent a method for performing a secure financial transaction online. Do bear in mind that the technical solution must be new, inventive, industrially applicable, and must have a real or quantifiable effect in order for it to be patentable.

An advantage of having a patent is that, even if the app appears under a different name or is coded differently, so long as the app performs all the steps claimed in your patent, the app is considered to be infringing and you can take action against the third party.

Industrial Designs

It goes without saying that the graphical user interface (GUI) is an important component of an app. A well-designed GUI can greatly enhance the user experience, while a poorly designed one can cripple an otherwise well-thought-out app.

Since the appearance of a GUI can be ornamental in addition to being functional, GUIs can be the subject of an industrial design registration. Industrial design registration can be used to stop others from copying the look of your app so that no one else can have a slick-looking app that looks exactly like yours.

In order for a GUI to be registrable as a design, it must be new, meaning that no similar design exists anywhere in the world. If the GUI does not differ materially from a GUI that is already in existence, the GUI is not new and there is no design right.

Trade Secret/Confidential Information

Your app may include some special secret sauce that gives it a leg up against the competition. Maybe it’s a network of trusted vendors whom you have developed a special bond with over the years. Maybe you’ve found a way to write a robust program using less instructions, making the app less bloated. Or maybe seeing your pet hamster every morning makes you feel like everything’s going to be alright.

Whatever the secrets to your success are, you should make an effort to ensure that such secrets are kept confidential by restricting access to them, e.g. keeping them in a hidden vault, using non-disclosure agreements to deter loose lips from spilling out secrets and any other methods that you can think of. Because there are no specific laws that govern trade secrets, you will need to rely on branches of law that deal with contracts and breaches of trust to deter or recover damages from theft of trade secrets. Of course, once the secret is out, you can’t make it a secret again, so prevention is better than cure.

As of now, we don’t know of any app that can help you with the filing and managing of your IP applications. Instead of waiting for such an app to be created, why not give us a holler? After all, we’re here to help.