I have a business idea - How can I protect it?

Eliane Spirig
Eliane Spirig

As a company and especially as a start-up, you want to protect your own developments, thoughts and ideas. The aim is to prevent third parties from making use of this and using external work for their own benefit. But which steps have to be taken in order to protect a business concept? As a company, there is great interest in having its own business ideas protected from third parties.

Can I have my business idea patented?

To answer the question beforehand - no, it is not possible to patent an idea. In Switzerland, we have the Patents Act (PatA), which clearly regulates what is patentable and what is not. A patent basically secures an invention, but not every invention is patentable and can therefore benefit from legal protection. The Patents Act (see Federal Institute of Intellectual Property (IPI)) clearly defines what can be applied for a patent: Firstly, the idea must be new, secondly, there must be an inventive step and, last but not least, the invention has to be industrially applicable. In short, patent law deals with technology, i.e. physics, chemistry, electrical engineering, computer science, biology, etc. In other words, non-technical ideas are therefore not patentable, in particular scientific, mathematical or economic inventions.

How can I still protect my idea?

A business idea cannot be protected like a design or a brand. The only way is to prohibit further dissemination. There are various options to do so:

Carefully select business partners

This preventive measure prevents your business partner from stealing your idea and thereby endangering your future business. A reliable business partner will also act in the interest of the company and support you in the implementation of ideas.

Legal security

Another preventive option is the conclusion of a confidentiality agreement in which it is recorded which information or ideas are subject to confidentiality. It is recommended that such a written Non-Disclosure Agreement (NDA) be drawn up with or reviewed by a lawyer.

Proceed legally

This is not a preventive measure, but a repressive one. The Federal Act against Unfair Competition (UWG) is primarily authoritative. Nevertheless, even here it is difficult to protect a specific business idea. Because Art. 5 UWG only protects the finished work result. This includes, for example, completed plans, calculations or quotations. The law only covers already materialised results and therefore mere ideas are not protected.

Art. 6 UWG protects manufacturing or business secrets. But even this provision does not fully secure the business idea. This article only applies if someone has unlawfully learned of this secret business idea and then exploits it or communicates it to third parties. For this article to be effective, it is extremely important to keep the business idea absolutely secret.

The Swiss Criminal Code (SCC) also provides for sanctions. According to Art. 162 SCC, a person may be punished who discloses a manufacturing or business secret despite a statutory or contractual duty of confidentiality or uses it for himself or for third parties. The big difference between Art. UWG 6 and the criminal law provision (Art. 162 SCC) is that the latter presupposes a duty of confidentiality, which is either prescribed by law or has been contractually concluded between the business partners.

So what is the best solution?

We have shown that business ideas generally do not enjoy patent protection and that the various subsequent sanctions do not offer absolute protection either. The best approach to protect ideas is therefore prevention. This keeps the risk as low as possible right from the start. Take your time to carefully select your business partner and agree with him on a confidentiality obligation that has been reviewed by the expert. This protects your business idea as best as possible.

 
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