Intellectual property and disruptive technologies: how to protect your innovation

In today’s digital-driven economy there is hardly an industry that is not evolving through digital innovation. The IP needs of those disrupting an industry are different from those of the incumbent companies, but are no less important. A well thought out IP strategy is absolutely necessary for a startup to protect their innovation, prove themselves worthy of investment, and make themselves attractive enough to ultimately achieve exit.

During London Tech Week, Gill Jennings & Every held an event to address the key IP challenges faced by startups operating in disruptive technology, and how they can protect themselves. Here are the key takeaways:

A patent is the best protection for your idea

There are many forms of IP a disruptive company can and should have – for example, a trade mark to protect the brand name, and copyright to protect the expression of the software code underpinning their technology. However, neither of these will protect the entire concept behind their innovations. With a lifetime of up to 20 years, a patent is the only route that allows startups to protect the concept behind their ideas for the key phase of development, and truly gain a foothold in the market.

It’s a myth that software can’t be patented

It is a commonly held view that software, the foundation of the majority of disruptors’ businesses, cannot be patented and can only be protected through the copyright in the code. While it is true that the European Patent Office technically excludes computer programs and business methods on their own from qualifying for patent protection, companies must simply show that the software goes beyond a business advantage, typically by evidencing a technical effect of the software that makes it patentable. With over 10,000 patents filed in the area of computer technology in 2016 alone, it is clear that many software companies are successfully patenting their technology.

Get protection for your business method “through the back door”

While a pure business method cannot be patented, IP lawyers can often find a part of a process that can be, by starting with the method and working backward through the technology that makes the business method possible. For example, the broad concept of a ride sharing app is non-technical and unlikely to be applicable for patent protection, but an inventive use of satellites to allow better car tracking might be. By patenting the underlying technology of the invention, organisations can prevent competitors from copying the innovative part of their business, thus giving “backdoor protection” for their idea. A good method for many disruptors is to submit an application directed to the broad concept, supplemented by a number of narrow applications that protect that technology that makes the concept possible.

Start with what matters to your business

There is no single answer to the question of what a startup should be protecting first; the most important thing is to build an IP strategy around their business plan. Startups don’t have the budget of big businesses, so they should think smartly about what they are trying to achieve, and what they need to protect to achieve it – typically, the core technologies that underpin the company, and the key territories. Before protecting anything, the question that should be asked is what purpose the protection will have for the business. An IP professional is best placed to advise on these points.

If you wish to discuss any of the issues raised in this article, please contact Peter Arrowsmith via peter.arrowsmith@gje.com.