11 September 2018

Advantages and disadvantages of i-DEPOT

The so-called i-DEPOT has fierce supporters and opponents. This article describes what i-DEPOT is all about, what its evidential value entails, what is its interaction with patent law, design rights, copyright, etcetera, and what are other potential advantages and disadvantages.

Although the value and advantages of an i-DEPOT is often overestimated, there are nevertheless several advantages to be gained with an i-DEPOT.

What is an i-DEPOT?
The name says it all: an i-DEPOT is information that is deposited. It should be regarded as a (digital) safe in which information is placed. An i-DEPOT can be submitted in paper form or digitally and can consist of text, photos, source codes, music, etc.

An i-DEPOT is deposited at the Benelux Office for Intellectual Property (BOIP). The BOIP is an independent official body in the Benelux where Benelux trademarks and designs are registered. The i-DEPOT is valid for 5 years and expires, if it is not renewed. The costs are relatively low. Therefore, the i-DEPOT is described as having a low-threshold and inexpensive to use.

i-DEPOT as a source of proof
The greatest advantage of an i-DEPOT is that it has a date stamp. The depositing party can show that on a particular date, he/she possessed the information deposited in the i-DEPOT. At the same time, the greatest disadvantage is immediately clear: an i-DEPOT does not constitute a legal proof that the deposited idea also originates from the deposing party and that it concerns his/her property. After all, it might be attributed to another party or the deposited material might have existed earlier or perhaps was already something publicly known.

Moreover, the evidentiary value of an i-DEPOT is not high: in legal proceedings the court at its own discretion determines how much value it attaches to the evidence. This is different – for example – from a notarial deed that carries absolute evidential force.

i-DEPOT and patent
The content of the i-DEPOT is in principle secret, in the sense that the i-DEPOT is not public. The depositing party may choose to make the content of i-DEPOT public. The interaction with the patent law is therefore double-edged. On the one hand, by keeping the i-DEPOT secret, the depositing party can opt later for submitting a patent application related to the idea. As long as the depositing party keeps the i-DEPOT secret and does not publicise it otherwise, then the i-DEPOT does not damage the novelty. However, such a secret i-DEPOT does not prevent a third party from making the same discovery and submitting a patent application related to it. Then the content of the preceding i-DEPOT does not damage the novelty for the patent application. The result of this is that the patentee obtains the ownership. Essentially this also applies to the registered design right.

i-DEPOT and copyright
Copyright is generated automatically; there is no need for further registration. Perhaps carrying out an i-DEPOT does not have added value, if one can trace and determine adequately on which date the work was created. Determining the date is essential for the copyright in order to demonstrate that the work is not derived from the younger work of a third party. Documenting the development of an idea/product in a careful manner can also result in determining on which date something was created. The advantage of an i-DEPOT for this might be that discussion about the date of creation can be limited, because the i-DEPOT provides a date stamp.

The value of the deposited material
The BOIP facilitates the storage space for the material deposited by means of the i-DEPOT and provides a date stamp, but it does not provide insight into the content of the deposited material. There is no check made whether the deposited material is actually new, whereby the i-DEPOT does not constitute proof of any quality. If someone invokes an i-DEPOT, then this is not necessarily a strong right. It does not at all guarantee that the deposited material is new or innovative or that it concerns intellectual property rights.

i-DEPOT and commercial exploitation
An oft-repeated advantage of an i-DEPOT is its value in negotiations and in entering partnerships. In advance of parties deciding to invest and/or collaborate, frequently a Non-Disclosure Agreement (NDA) is signed in which the parties undertake to maintain secrecy about the information they are going to share. They can also indicate which information one of the parties possessed. Then the NDA can refer to the i-DEPOT registration number to describe in this manner what the parties should consider secret information and what they should consider shared information. This clearly frames the subject to which the non-disclosure obligation applies. This can also constitute a disadvantage; after all, the clear framing results in less flexibility in maintaining secrecy about any further developments. Potentially, formulating a general definition of confidential information can contractually describe and register to what the non-disclosure obligation applies. An i-DEPOT is not needed for this.

In case of attracting investors, it might be useful to request an i-DEPOT as an addition to a patent, brand and/or design portfolio.

i-DEPOT in i-D Space
There is also the possibility to publish a submitted i-DEPOT via the BOIP. The BOIP operates a freely accessible search engine, the i-D Space, which can be used to look for i-DEPOTS in specific application areas. BOIP’s objective in this is that depositors can find investors far easier and can enter partnerships more easily.

An i-DEPOT or no i-DEPOT?
An i-DEPOT is not an intellectual property right that can be used to prohibit another person/entity. The BOIP provides only a date stamp, but it does not state anything about the content, novelty or ownership of the deposited matter. This means that the evidential value is disputable and depends on the specific circumstances. In addition, an i-DEPOT can sometimes be deployed within the framework of partnerships.