Let’s talk about patents

7 Feb

Firstly, just to get it off my chest, I believe it’s pronounced pat-tents, as in patting a dog, rather than like those shiny leather shoes we all wanted when we were ten. It’s a personal bug-bear, and I’ll try not to mention it again… anyway…

A patent is a form of intellectual property protection, designed to allow you, the inventor, to profit from and protect your idea from being used by anyone else without permission. According to Wikipedia, ‘patent’ comes from the Latin patere, meaning ‘to lay open,’ as in to share something, which is ironic really, given that what you are actually doing is aiming to stop anyone else using your idea for their own gain. In reality, what having a patent means is that you can sue anyone who tries to copy you. In the UK it appears we first started dealing with patents in the middle ages, with the system gradually being refined over the years. I say refined, rather than improved, because by Victorian times it was such a mess that Charles Dickens felt the need to write a story about it, entitled A Poor Man’s Tale of a Patent. His protagonist describes visiting 35 different offices in order to get his patent approved, an exaggeration, but not a massive one. Julie Halls, in her book Inventions that Didn’t Change the World says that Dickens’s character accurately described how a lot of his contemporary inventor colleagues felt, although they visited a mere ten offices in reality.

The Victorians developed two responses to this. Firstly, a new service industry of professional patent agents sprang up; people who were often good draftsmen who could effectively draw and describe your invention as part of the process and were used to guiding people through the administrative maze. The other was a whole new way of registering designs, the Design Registry, for people who couldn’t afford or cope with the patent system and, even though substantial new inventions were supposed to use the patent system (based on the utility of the idea or produce) rather than the design registry (based on appearance or form of the product) many inventors simply registered their idea as a new design rather than a new patented invention just to avoid the longer process.

Things have evolved since then, but haven’t necessarily improved. These days, there are four different ways you can register your intellectual property: trademarks (for names and logos), patents (for inventions), designs (for appearances) and copyright (for creative output, including writing). You can see a really nice clear explanation of all of these on the Intellectual Property Office website if you are interested. The process seems so simple at first, but as you delve deeper into those pages, it becomes clear that the process is still anything but quick, straightforward, or, most importantly, cheap.

Timing
So, let’s say you’d invented something new. Oh, I don’t know, maybe some body armour. You’ve already invested a couple of years of your time and money researching and developing it, and you’re convinced that you’ve now got a pretty good product that is ready to sell. So far, you haven’t shown your product to anyone, but in order to get it out there into the marketplace, you’re going to have to start showing it off. It’s time to think about protecting your idea. Now let’s say, for argument’s sake (and we could get really technical and specific here, but let’s not), unlike the device you invented for holding spectacles, body armour is not a completely new idea; people have worn body armour before. But, you have invented an entirely new type of rivet to hold your body armour together, so you can protect this with a patent, like this one. You could also register your armour as a new design, perhaps, because while the function is the same as any armour (patent = function) its never looked like this before (form = design). Whatever path you choose, it’s going to take a while. Back to the patent.

Did you see the dates on that form? It took 18 months from filing a patent application to having it published. This time is taken up by the IPO doing a search of its records to make sure your idea is not like anyone else’s. After publishing, it took a further two years before the patent is granted. The IPO guidance suggests that you allow 5 years to complete the process, so Douglas’s application was fairly speedy at a mere 3 and a half years. After that, the time on your patent is limited, so the moment it is granted, you have a small window of time in which to exploit your idea under protection and then either choose to have it renewed or let it lapse. The IPO currently says that you need to renew after four years, so you’d better be ready to start your marketing campaign immediately, because four years to market a product from zero is very little time at all.

Regions
UK patents only cover the UK. That means that as long as you only plan to make or sell your product in the UK, you should be fine with just UK patent coverage. However, we live in a global world, and when it comes to manufacturing you need to think about the places where they might be able to make your idea more cheaply and quickly than you can here. China, Taiwan, Malaysia, these places should probably be covered by your patent if you really want to make sure that no one else can exploit your idea. Also, there aren’t that many large clients who might buy body armour in the UK, other than the police and the armed forces, so you might want to be able to sell your armour abroad, to places like the USA, Europe and so on. Thus, those countries should be covered too. There are two routes you can take. Either, you file patents individually in each country that you want included, or you can use the Patent Cooperation Treaty. There’s a useful page from the World Intellectual Property Office about the PCT, complete with flow-chart and timeline, showing that it takes more than 30 months to get your patent through the international part of the process before it hits local national offices. Which brings us on to fees.

Cost
How much does it cost to have a patent application granted? The short answer is, a lot. If you looked at the IPO link above, the guide suggests that it costs £280 to apply for a UK patent. In addition to that, it continually mentions patent agents, because in order to get your application as ready as possible, it’s a good idea to have someone who knows what they are doing making the application for you, including searching the registers to make sure that when the IPO searches the registers, you’ve already done your homework and they don’t find anyone else with the same idea. Patent agents cost money. If you want a lucrative career and you don’t mind detailed, precise work, become a patent agent. It can cost thousands to have a patent agent do some work for you. Let’s say that they charge you £5000 in fees for your UK application (this is an average guess. Some charge more, others less). Then, because you want to go abroad too, they charge you more to search international registers, let’s say £10,000. On top of that, allow for international fees, including the 3000 Swiss francs for the application, plus local office, agent and translation fees in the countries you wish to publish in. And let’s not forget, as at this moment, you haven’t sold a single item and may not have a single customer lined up. I don’t know about you, but I’m beginning to wonder if it’s all worth it. So far, you’ve paid out at least £25,000 and are having to wait five years before you can go ahead and make any return on the product you have already invested all that R&D time and money in.

Is it worth it?
Different people have different opinions on this. Some argue that by the time you’ve done the research and development phase, you are so far ahead of your competitors that you might as well just forge ahead without protection and use the element of surprise to your advantage when you suddenly launch your new product. Others argue that patent protection is worth it in terms of fending off rival manufacturers. However, let’s be clear, according to the IPO ‘protecting your intellectual property makes it easier to take legal action against anyone who steals or copies it.’ That’s not a lot, simply allowing you the right to sue. Suing someone comes with its own costs and effort and a small one-man band may not have the resources to sue anyone who comes along with a copy of their idea. It seems that this protection game is skewed entirely towards entities large enough to swallow the upfront costs as well as the staff team and pockets big enough to go out looking for anyone copying and taking them to court. It’s no wonder that these days very little patented innovation comes from anywhere other than companies and universities. No one else can cope with the process, time and costs involved. I may be wrong, but I think we’re less encouraging of innovation in this country than we’d like to admit.

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