10 October 2012
‘A patent is only as powerful as the amount of money you have to defend it’ is a very true statement. Tanya Weaver looks at what other, less costly, options there are available to inventors and SMEs
It has been quite a summer. The Olympics and Paralympics saw us glued to our screens even watching sports we wouldn’t usually watch.
I’ve never been partial to horse dancing and didn’t even know that a sport such as hand ball existed.
Then there was the Syrian conflict, continuing Eurozone crisis, the fact that it was the worst summer on record (or it at least felt that way) and, of course, the massive Samsung vs Apple showdown which saw the latter bag over $1 billion in damages for the infringement of intellectual property (IP).
Arch rivals to say the least, these two have been at each other’s throats for over a year (in this particular case) with Apple accusing the South Korean company of making products that were similar “beyond the realm of coincidence” to the iPhone and iPad in terms of interface and screen design through to key hardware and design elements.
In August, a Californian court ruled that Samsung was “wilful in its infringement” of Apple’s IP. Although Samsung got its knuckles wrapped, this is far from over and it has since appealed. But this isn’t just between Apple and Samsung.
In the smartphone space, just about every electronics company is suing another for stealing IP. It’s not called ‘patent wars’ for nothing. And with Google entering the battlefield having recently bagged Motorola Mobility with its 17,000 patents, they’ll no doubt be more war to come.
So these companies ultimately use the patent system to prevent competitors from using their design features and technologies.
Although they could license out their IP, they tend not to as they don’t want anyone else producing a similar product to theirs and taking market share. So, patent lawsuits are just a part of business with millions spent on patent fees, lawyers, court cases, fines…
But what about the smaller player — the inventor and SME — who doesn’t have millions to protect their IP? This was brought home to me recently when I visited the inventor Mark Sanders.
Having designed his own products for the past 27 years, Sanders has his fair share of patents. However, his trick is to assign the patent instead of licensing it. In other words, the companies that market and manufacture his products own and maintain the patents.
As an individual he just wouldn’t be able to afford the costs that the patent system demands. Sanders has a very cynical view of patents.
“The main use of a patent is something tangible to show, as few CFO’s of marketing companies or investors will put cash down for ‘just’ an idea,” he told me.
One of the best commentaries that he has come across on this subject is a book written by A Better Mousetrap, a UK-based company providing support to inventors. The book — A Better Mousetrap: The Business of Invention — comes with a free supplement written by the co-author Graham Barker — Patenting your invention: the Ugly Truth — that can be downloaded as a pdf from the website.
So, I made myself a cup of tea and prepared some snacks before I started trawling through the 32 pages in the hope of enlightening myself about patents. It actually made for very interesting, and in places humorous, reading even if you are not an inventor or don’t have any inclination of patenting anything.
On the first page Barker lays it bare: “Although this supplement may seem like one long venting of spleen, there is a bigger, more constructive picture to be found in the book proper. All we need say here is that there are other IP weapons beside patents for protecting an idea, but they rarely get the credit they deserve.”
Before I go into these other alternatives, I’ll just go into the costs involved in patenting as this was an eye opener for me. Paying for a patent is just the tip of a very expensive ice berg.
You start by paying in your country, then you have to pay separately in each country in which you want to be recognised as the patent’s owner, then after five years you have to pay renewal fees to each separate country, which increases over time.
If the patent is going to bleed you dry,you need to think about what you’ll earn from your invention and whether patenting it makes economic sense
But that is just maintaining the patent, what if a baddie comes along and tries to steal what you are trying to protect? To take any sort of action, you have to pay an expensive patent attorney (they don’t drive flash cars for nothing) and not to mention more legal fees if it goes to court.
Just to give you an idea, an average patent litigation lasts up to two years and costs about $3 million (about £1.8 million). I don’t know many inventors and small businesses that have that amount stashed in a piggy bank.
So, if the patent is going to bleed you dry, you need to think about what you’ll earn from your invention and whether patenting it makes economic sense. As Barker states, for many inventions and products, a combination of usually cheaper forms of IPR will give a more effective protection than a patent.
For instance, registered design, copyright and trademarks will all deter infringers. And, as Sanders has discovered, design registrations are called design patents in the USA and cost much less than full patents.
So you can say ‘copyright, design-rights, design registration and patented’ relatively inexpensively. This is the second time that IP and patents have been the subject of my comment piece and I’m sure it won’t be the last as this is a huge topic.
So, in the meantime if this subject riles you or even if it just mildly irks you, email your thoughts or comment to this post. There is nothing like a good rant!