I’ve recently been thinking more about Social Enterprises and our role as Intellectual Property specialists in helping businesses build technology. Increasingly, the technology we see being developed is directed toward solving environmental problems, i.e. the ‘green-tech’ boom.
Some of these businesses are regarded as "Social Enterprises", businesses that have a predominantly 'social' purpose and return profits into furthering the purpose, in contrast to stereotypical 'profit-driven' businesses that return profits to shareholders.
I doubt that many people think much about Intellectual Property rights when they consider ‘social enterprises’, non-profits, charities, community organisations and other social purpose organisations. Many would argue that there is an inherent dichotomy between social enterprise and intellectual property (IP). This is understandable, as, for many people, the sole purpose of IP is to generate profit through obtaining some form of monopoly over their IP.
However, this attitude takes a very simplistic perspective and fails to take into account the myriad ways in which IP is used and the sometimes less obvious benefits that can help social enterprises.
For example, it can be difficult for start-ups and social enterprises to get funding and most investors want to see that the start-up has their IP sorted or at least has considered IP and developed a strategy.
I’ve included some examples of the different types of IP and discuss how they may relate to Social Enterprises.
A trade mark provides the owner the right to stop others using the same or similar mark for the same or similar goods or services. This seems very much like a profit-driven purpose to many people but there's a less obvious purpose for trade mark rights that puts the public first.
Trade marks are also there to protect consumers. A consumer has the right to know who is providing them the goods or services so they can make an informed decision about that purchase. Consumers could otherwise be deceived if businesses were free to pretend they were someone else. We’re all familiar with counterfeit goods, a great example of why trade mark rights are so important. Counterfeit goods may be lower quality, faulty, produced unethically, environmentally damaging or downright dangerous! Trade mark owners should be able to stop counterfeiters, to not only protect their reputation but to protect the public from counterfeit products.
A social enterprise's trade marks are just as important as for any other business. Even non-profits have valuable trade marks that must be protected and policed so that the public are not deceived by people or businesses passing themselves off as the trade mark owner.
You are probably aware of the various certification trade marks that are used to reassure consumers that products have been assessed or otherwise meet certain criteria. A well-known certification mark being the Energy Star labels on appliances.
Trade marks can therefore be an important IP right for any organisation, regardless of whether they are profit-driven, non-profit or a social enterprise.
Patents provide the owner a temporary right to stop someone making, using or selling the claimed invention in the jurisdiction covered by the patent. In exchange, the inventor has to publish details about how to make their invention so the public can use it once the patent expires.
This patent monopoly again seems like an IP right to help only profit-driven organisations. Certainly patents are most often obtained for that purpose. Nevertheless, a social enterprise also needs to return a profit to further their purpose. They can use that profit to further their social purpose, e.g. growing the business to reach more people, develop new products or for diverting the profits to charity.
There are other purposes for patents of course and some of these are also relevant to social enterprises. Any entrepreneur will tell you how hard it is to convert an idea into a business. The 'overnight success' businesses you see take many years of hard work. It's thus heart-breaking to see those businesses just start to succeed, only for a larger corporate to take their idea and crush the fledgling business. Patents are often the only option to prevent that happening, or at least extract compensation for that theft.
Patents need not be kept under the sole control of one entity. Patents can be licensed to others to let them reproduce the invention and, in this way, a social enterprise can control the social impact of that invention, ensuring it reaches those people that are most in need.
Patents can also be used in a similar manner to trade marks, in preventing counterfeit goods entering the market that may be lower quality, environmentally or socially damaging. The patent owner for example may only license the patent to companies that meet certain sustainability criteria, while not licensing to polluting or 'green-washing' companies.
Patents don't have to be used to extract profits either, they can be licensed free of charge if the owner wants to. Patents can even be purposefully abandoned to give the invention to the public.
Governments and many organisations have introduced various incentivisation programmes or schemes to help business solve social problems. Most commonly these programmes involve incentives or programmes to help at least 'green-tech’ enterprises. The World Intellectual Property Office (WIPO) for example introduced the Green Tech Transfer database to give inventors of green tech a way to connect and build their business.
Other Intellectual Property service providers, including us patent attorneys, can also have a part to play in helping Social Enterprises to succeed.
We’re working on something along these lines so please stay tuned.