Should I patent my invention?
Some handy hints for Tech Start-Ups and others.
The great writer Charles Dickens covered almost every aspect of life including the patent process in his reprinted piece ‘A Poor Man’s Tale of a Patent’. In this short story Dickens tells the tale of John who travels from Birmingham to lodge in London and file his patent. After six weeks of unfathomable bureaucracy and cost he writes ‘I was quite worn out both in patience and pocket’. Many inventors today would be able to relate to this and sympathise with John’s experience. Gone is the need to take up lodgings in London to pursue a patent but the process remains one which is not easily navigated without professional help. For that reason we do have to ask what is the real value of a patent to your tech start-up? Anyone searching for the answer to this question on-line is going to come up with conflicting advice.
In one corner there is the ‘do not waste your time, money and effort on a patent’. In the other corner there are those who advocate that demonstrating patentability is very important to a start-up that hopes to secure investment. In this scenario it is important they say to demonstrate that what they have come up with is unique and able to solve a problem where there had previously been a gap in the market.
So who is right and who is wrong in this debate? The truth is the answer is not clear cut and depends on a number of factors. When we are advising start-up companies we are often wary of suggesting patenting at any early stage. This is not just because of the great cost of patenting against the limited resources they will have but also because an early idea is very often likely to develop quite a bit with the idea that comes to market differing so much from the first idea that the costs of patenting an early idea are wasted. In addition at some stage during the patenting process a patent application will become public and others can view and reverse engineer or produce something which solves the problem albeit in a different way to that set out in the patent. If this is done by a large tech company this can pull the rug from under a tech start up that is not yet ready for market. For these reasons we often advise that a tech start up hold fire and in the interim great care is taken of controlling confidential information. Most crucially of course if a start-up is holding fire the idea must not be published as this could undermine the prospects of securing a patent further down the development line. We have then found on occasion that once the idea is fully formed other forms of intellectual property are better and less costly protection for the business than patents.
On the positives, the weight investors can put on patents is undeniable. They provide a public and strong deterrent to those who are might otherwise enter the market with something that works in a very similar way. If the patent truly identifies a known problem for which a tech start-up has devised a neat solution to a long felt problem the patents can be often be very valuable and show a good return on investment.
The answer to the questions therefore probably depends on just how ground-breaking and useful your invention is and that needs to be assessed once your idea is fully firmed. Patents for truly innovative ideas may be worthwhile but for others consider other forms of protection that will give a good level of protection without the great cost. And remember one other thing, just as important as intellectual property protection is the right business model. The best invention with an unworkable model will fail. A tech-start up with a good business model and the right intellectual property protection is well placed to be successful and achieve their commercial ambitions.
Written by Margaret Briffa, Solicitor