The Patent Debate

“When should I get a patent?” is a question that bedevils the research community. While the importance of timing in maximizing an invention’s value is increasingly recognized, choosing the moment to file can give researchers headaches.

The simple answer is often ‘as early as possible’, but there can be good reasons for delay: For example, a patent offers a 20 year monopoly from the filing date. But in the pharmaceutical world, extra days of patent term can mean millions of pounds, so if the risk of competitors filing something similar is low, it may be worth deliberately delaying.

But let’s assume the competitors or investors are on your heels and you want to protect your innovation quickly. What does ‘as early as possible’ mean? The first step is to file a ‘priority application’. This establishes provisional rights and gives you one year to refine and develop the invention ahead of a final application. Priority applications don’t need a full working proof of concept, but do need more than just an idea.

In order for the priority application to establish rights, you will need sound scientific under-pinning. If the invention is a therapeutic compound, you will have manufactured it and be able to demonstrate logical reasons for expecting it to have therapeutic action.

The final application, which has to be filed within a year from the priority application, does require a demonstrably practical proof of concept or, in the case of a therapeutic compound, experimental data to support the claims of therapeutic utility.

By necessity, this is the briefest sketch, missing lots of nuance. The correct answer for you will lie at the confluence between the law, technology and business plans. A good patent attorney needs to be able to juggle all three.