If you’ve ever watched Dragon’s Den, you’ve probably seen a pitch hinge on whether or not the entrepreneur has a patent on the technology underpinning their product. However, despite an increased awareness, there remains a cloud of myth and mystique still surrounding patents.

To dispel that cloud we address the things you need to know about patents, but were afraid to ask.  Starting with the basics, we move on to cover strategy, enforcement and how to avoid costly litigation.

Visit our Designs FAQ and Trade mark FAQ pages to find out how you can further protect your innovations and brands.

Patent Basics

Distinct from trade marks, which protect branding, a patent protects technical invention. It grants a right to prevent other parties using an invention for commercial purposes. A patent also grants the right to license the invention to third parties, either for a flat fee or for profits-based royalties, providing an additional revenue stream. A patent can also make a business more attractive to investors or acquirers as it offers an additional layer of protection to their investment.

In short, if you want to monetise an invention, or control your competitors’ use of the technology, a patent may be right for you.

Assess whether a patent is right for your business here.

Patent applications are filed with an Intellectual Property Office (IPO). A patent might be granted within 12 to 24 months, but – depending on the sector and country of filing – five to seven years can be more typical. This slow pace allows for careful exploration of the market – there’s no point spending time and money building a patent portfolio if your invention is likely to be superseded in just a few years.

Costs can vary. Plenty of people will draft and file a patent application for a fixed fee. But if they aren’t getting under the skin of your invention and your business, it’s nothing more than a box-ticking exercise and won’t equip you to best deliver on your business plan – that’s not value for money, whatever the price.

Find out how we can help you protect your innovation with patents here.

While a patent filing has to include the name of the inventor, ownership isn’t always straightforward. Often it will be tied to employment contracts: IP arising from R&D work, for instance, typically belongs to the employer. Whether you’re an employer or an employee, make sure any IP clauses are clear from the start.

Find out how we can help you protect your innovation here.

There’s no legal requirement to have a patent attorney draft and file your applications, but going it alone is risky. Patent filings are complex, and the slightest error could invalidate a patent – or at least significantly restrict its effectiveness – with significant consequences for your business strategy. The long-term cost of an error could significantly outweigh the up-front cost of engaging a patent attorney.

Before their legal training and exams, a patent attorney will have completed a degree in a STEM subject. Many will also have advanced degrees, and plenty will have spent time working in industry, developing their own innovation as well as keeping up with the latest technical and commercial developments. The best will act as consultants, not just fact-checkers and box-tickers.

Find out more about our consultancy services here.

Patent Strategy

In short – absolutely! A patent strategy will stand your business in good stead in several ways:

  • Adequately protecting inventions safeguards value – inadequate protection has been known to wipe as much as 70 per cent off a valuation by a potential investor or acquirer;
  • Holding the right patents in the right markets at the right time will dictate your ability to grow internationally;
  • Knowing what it will cost to protect new inventions, and when these costs will hit, will help with budgeting and cash flow;
  • Plugging any gaps in your protection of your inventions will prevent competitors exploiting IP to undermine your bottom line.

Find out how we can help you develop and implement a robust IP strategy here.

Developing an effective patent strategy is all about making patents integral to your overall business plan from the outset. First, identify how any invention will support your business – will it enable a new process, product, or revenue stream, for example? How will it bring you closer to achieving your business goals – will it help with customer acquisition, or will it make the business more attractive to a potential investor or acquirer?

Once you’ve established the role of inventions in growing your business, you need to put reliable processes in place to map the discovery and protection of inventions against your business plan. Which inventions will you need to deploy when, and where? Think about international expansion plans, and make sure processes are underway to protect inventions in the right markets in good time.

Make sure your employee contracts are clear from the outset about who owns inventions created in the course of their work for your company. Monitor patent filings in and around your sector, to ensure you don’t accidentally infringe someone else’s patent – and to identify any potential infringements of your own.

Find out how we can help you develop and implement a robust IP strategy here.

If you’ve not protected your concept in the right way early on, or accounted for subsequent patent costs in your long-term funding plan, you could encounter crippling costs or have to scale back your ambitions. Will it be more cost-effective to file across geographies early and maintain that larger patent portfolio until you are ready for expansion, or to “file as you grow”?

Find out how we can help you develop and implement a robust IP strategy here.

It depends upon your patent strategy, but the simple answer is “when you are ready”. Timing is crucial for patents; file too early and you won’t have the support to show that your invention works and it may be rejected – too late and your competitors will beat you to it.

Your 20 year monopoly starts when your application is filed. Delaying effectively pushes back your window of protection which may be useful if you’re not ready to enter the market. But patentability is assessed based upon the prior art available before your filing date – so delaying means more art may be considered.

In choosing a time to file you’ll need a balance between the state of your technology, your business plan, the law and your appetite for risk. Something a good patent attorney can help you achieve.

Find out more about the importance of timing your patents here.

Absolutely. Trade secrets and confidential information are an important part of almost all modern business strategies. Not all ideas or business processes could or should be patented and identifying important confidential information is an important part of working out the value in a business. Software algorithms, manufacturing processes and other abstract information are all valuable intangible assets. In 2018 the EU took steps to harmonise the law protecting trade secrets with the Directive on the Protection of Trade Secrets

Patent filings are eventually made public, and it may be better to keep an invention as secret “know how”. Coca-Cola, for instance, has never disclosed the recipe for its signature product – once public, it would be much easier for competitors to recreate the same flavour. Some elements of an invention – such as a new non-spill bottle cap – will become immediately apparent once a product hits the market. But others – the composition of the bottle itself – will be less obvious and may be better not patented.

Assess whether a patent is right for your business here.

Enforcement & Infringement

More than 11,000 companies were accused at least once of infringing another’s patent over the past decade, according to PatentFreedom.com. Fortunately, there is a wealth of publicly-available information online that can help you avoid adding to that number yourself. Applications and granted patents can be searched and downloaded, and individual companies or technologies monitored for new filings, in order to establish your freedom to operate.

Unfortunately, that information isn’t all in one place. There is no single centralised patent database, and you need to establish freedom to operate in each individual market you intend to enter, so carrying out the necessary due diligence can be expensive and time-consuming. Cutting corners isn’t a viable option – not when you consider the potential cost of having to fight a legal action, withdraw a product from a market, halt expansion plans, or prepare for dramatically reduced investment.

Find out more about how we can help you avoid infringement here.

First things first – seek advice. Immediately. A concerted, strategic approach to patent enforcement is essential. The complex and potentially expensive nature of legal action means you need to understand and protect your company from the inevitably risk it involves.

Your instinct may be to sue. But is this in your company’s interest? What can you expect if you win? What if you lose? Can your company support a protracted legal dispute? And if so, for how long?

Suing isn’t the only option. Mediation and arbitration offer effective alternatives to court. Striking a deal could see license fees or royalties added to your company’s revenue streams.

No matter what action you take, you’re going to need evidence – so start collecting and act promptly. If they are selling your product, buy it; if they are using your process, how can you prove it? And avoid a knee-jerk reaction to infringement. Sending that “cease and desist” letter as a shot across the bow could prove costly as those unjustly threatened are protected by law. So don’t do it – instead let us handle your negotiations.

Actively policing your patents is vital to realising a return on their investment. However you go about it, be sure to talk to us first.

Find out how we can help you enforce your patent protection here.