Patents

Patents are the workhorse of the Intellectual Property system, protecting the ‘inventions’ that most people associate with IP.

To business they are a valuable tool, particularly as they often provide the broadest and strongest form of protection for invention and innovation. The type of subject matter they can protect is often beyond the scope of other forms of IP protection available. Thus patents cannot be substituted – though can often be supplemented by – other forms of IP protection.

Patents can protect function – unlike copyright and design registration – which is a major distinction. Thus any new innovation which is functional in nature is a prime candidate for patent protection.

In terms of the protection they provide, we must look at how patents define their monopoly (i.e. what they cover), and also the novelty of the invention. An underlying principle of patents is that you cannot patent, for yourself, that which has been done before – though you can patent novel improvements to what is known already.

A patent defines its monopoly in words, ‘listing’ in patent claims the features which must be present for another person’s product to infringe the patent. Avoiding infringement can be difficult, as re-designing or re-engineering an invention to avoid key features may not result in a commercially viable alternative.

A cost of a patent is that it involves a disclosure of the invention, eventually accessible to the public unless the application is withdrawn beforehand. While retaining an innovation as a trade-secret is an option, maintaining secrecy is problematic. If secrecy fails, you have no protection. Even if it doesn’t, it is hard to share the trade-secret in return for royalties or other consideration.

In Practice

The chief advantage of patents to a business is the breadth of protection they can provide, and the strength of that protection. They are ideal as a basis for licensing and technology transfers, and may be a facilitating requirement for this to happen (see section on ‘Licensing & Assignment’).

Patent protection may in some instances be well supplemented by other forms of protection, such as copyright and design registration. These act as additional deterrents to potential infringers or competitors. Trade Mark registration can also be effectively used to protect brands and trade marks used to promote and sell the invention. This can further secure, and make inaccessible, the patented technology.

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