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Patents and intellectual property

To patent or not to patent

It’s a question that every inventor and entrepreneur developing a new product will face sooner rather than later. Strictly speaking you don’t need a patent, you can develop and release your product without getting patent protection. However, without patent protection you 1) run the risk of someone else acquiring the patent rights to your invention 2) if the plan is to license, sell or raise investment for your project, you will find it near impossible to succeed with the plan without a patent protection in place. For it’s the legal exclusive right a patent provides that manufacturers and investors will demand to trade with you.

A sword not a shield

It’s often assumed that once you file a patent, it provides an exclusive right to pursue a project without interference i.e. no other can do anything similar. This is not the case. Patents are a sword and not a shield and do not ‘prevent’ someone from infringing your rights should they decide to do so. A patent merely confirms you are the legal owner of your technology and as the owner, you have the full right in law to prosecute anyone who attempts to infringe, steal or copy your exclusive rights and property.

It's your responsibility to protect your legal rights

Don’t expect the Patent Office to step in or your patent attorney to work free of charge, should someone decide to infringe your legal rights. It’s your responsibility and yours alone. Infringement litigation is hugely expensive and something that should be avoided. Instead of fighting the fire, you must prevent the opportunity to build the fire in the first place.

Prevention is better than the cure

Infringement is linked with opportunity, and if there is no opportunity there will be no infringement. To close the door on others finding the opportunity, you must examine every possibility and obtain the rights to the ones that have commercial merit.

Market position is your best friend

Market position is a term used to define a products position in the market. For example, a cordless toaster priced at £50.00. Just as long as the toaster is selling well, is making money, its return rate is low and the relationship is trouble free, it is very unlikely e.g. a retailer will stock a similar product that disrupts this. Why should they. They will only consider a similar product, same functions, quality, design etc if it delivers something more e.g. a better margin. If you deliver the perfect solution you will secure a robust market position.

Filing a patent and nothing else

A common approach many inventors and innovators take, is to file a patent and then do nothing. Whilst this can be a tactical decision to create a comprehensive protective barrier, this is not the case in most instances. If you are not prepared to develop-out or commercialise your project, what the point in filing a patent and clogging up the patent office. You may as well save your money and not bother.

Hoping for a knock at the door

Once you patent is published, don't expect buyers, licensees and investors to be beating at your door, hoping to get a piece of the next big thing. This simply does not happen. To monetise a patent, you need to go out, put in the effort and make it happen.

I just want to license my idea

If we had a pound for every time we heard this statement, this page, website etc would not exist. This is reason why the % of invention successes is so low – because the majority of inventors have this mindset. If anyone tells you, you can sell or license your idea, they are lying to you. Manufacturers etc don’t buy or license ideas, they buy and licence commercial products. If a manufacturer etc has to develop your idea, then whose product is it once it’s been developed. Also, most manufacturers (on a weekly basis) receive countless proposals from design studios looking to sell or license their products. There is no reason to look at ideas when there is no shortage of commercial products to consider.

A patent is simply not enough

If you were in the market for a new car, would you pay 0000’s simply for a loose description how to build it and once built, the exclusive right to drive it. No ! you would want to see it, sit in it and drive it to access its right for you. So why do so many inventors think potential licensees or buyers are any different. They are not. Marketing a new product based on patent alone will not deliver a result. You need a physical product based on a commercial specification.

Patent attorneys - friends or foes

There are two ways to look at this. If you need a patent, you need to employ a qualified patent attorney to do it for you. However there are caveats. In most cases, 1) a patent attorney will not (and cannot) help in other areas, including providing advice on the commerciality of your project, 2) they will draft and compile the application based on what you provide them – irrespective of its viability and 3) as lawyers, bills are never short of coming and the onus is always on you. What’s the solution. Use them when you need them and not when you think you do.

When should you file a patent

The time to file a patent is based on a combination of business and legal factors, so there is no clear answer. It all depends on the circumstances and the speed of the project. The natural inclination is to file as soon as you come up with the idea. Which is OK if the idea is simple or you plan to amend the application (within 12 months from the date of filing) after further developments have taken place. However because time limits come into play the day the application is filed, good practice is to file once the design has been fleshed out, commercialised and or the key patentable features have been identified. Taking this approach not only saves money and buys time to fine tune, it pushes back the date then the patent will be made public by the patent office.

The idea thieves

A common misconception and one that some patent service providers peddle, is that if you tell anyone, including the old lady who lives next door, your idea could be stolen. Whilst we are not undermining the importance of confidentiality, the stealing of ideas is very rare. Why ? because infringements happen to products, not ideas. Consider this, if you were in the infringement business, would you invest heavily and take a risk on a untried and tested idea, or would you look to improve an existing product where need and demand has been confirmed. Infringement happens, but very rarely during the infancy of a product. If it’s going to happen, it will happen when commerciality has been proven - but only if you provide an opportunity to do so.

Don’t tell anyone !

Another misconception is, if you tell ‘anyone’ about your idea before you file a patent, your right to file will be lost. This is not entirely true. The UK Patent office states... ‘if you make your invention public, you could lose the possibility of your patent being granted’.

The term public, essentially refers to an idea already known to the public, either because it’s in public use, on sale, it’s been publicly disclosed and demonstrated, adverts or features in a newspapers or magazines have been published, it’s been broadcast on TV etc. Making your idea public, doesn’t really refer to the disclosure to the old lady next door – unless it’s made in a public place and decides to contest your right to obtain a patent.

Patents on the cheap

There is no law that dictates you must use a patent attorney to protect a new idea invention. Anyone with a good understanding of the process can independently compile and file a patent with the Patent Office. However just because you can, doesn’t mean you should. If the reason for compiling and filing a patent yourself is due to affordability, you really need to take a step back and think very carefully before proceeding. Because if you don’t have the money to pay a patent attorney, you certainly don’t have the money to pay for design, packaging, prototype production and testing. The essential elements you need to commercialise your project.

Spending all your money on patents

One of the big mistakes many inventors make is to focus on intellectual property and protecting their idea. Protecting new technology is important, however if you spend all your hard earned savings on patents and patent attorneys, how are you going to fund the design and development process, the build of prototypes and production of marketing material – the vital tools needed to commercialise the project. You need a budget for IP protection but IP should take up your entire budget.

Overvaluing the importance of your idea

Don’t think your idea is worth more than it is. The only reason why you should consider it to have value, is to provide the motivation to drive it forward. Likewise, don’t over think its importance or presume retailers and manufacturers will be missing out if they don’t embrace it. You have to prove value and importance through product development, marketing and commercialisation. If the idea remains just that, and is not developed out, it has no value or importance and will never be missed. Life will simply go on without it.

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