The first lesson on intellectual property is don’t be intimidated by the ‘intellectual’. Aside from making me feel clever, the ‘intellectual’ just means that we are talking about ideas. The most important thing you need to know is that intellectual property is property. Like any other form of property, you can use it as a business tool. You can rent it, sell it, buy it, etc. So it’s all about owning ideas. Although this sounds weird, it’s actually a concept baked into the English language – if you say, ‘I have an idea’, you are saying that there is an idea and it’s yours (i.e. you own it).
Converting your ideas into intellectual property allows you, and more importantly potential investors, to see that you are producing valuable ideas. It also is an excellent way of recording and organising these ideas.
A field spotter’s guide to the different breeds of intellectual property:
Good question! The most important thing to remember: it’s a business tool. You should always make sure this tool helps you execute your business plan because, like many tools, there’s a cost to getting and maintaining a patent. However, a patent does come with some useful features:
A patent is property – so it has value. It can be sold, bought, leased, or used as security for borrowing. Patents are also a measure of research and development output. Patents allow you, and investors, to see how effectively you are producing improvements.
So even before grant, a patent application can be used to help get funding and further investment.
A patent is an excellent way of recording an invention as it’s proof you own the invention.
Like an unlocked bicycle, an unsecured invention might not be yours for very long. A patent can be used as a lock to secure an invention to your business. This prevents ex-employees, customers, competitors, or random strangers from taking ownership of your inventions.
When you apply for a patent, you signal confidence in your invention, legal awareness, and that you can afford a patent. This may be enough to scare competitors away from developing or selling similar products. You can also use a granted patent to stop others and give yourself a monopoly.
But a note of caution – if competitors don’t respect your patent, you may need to enforce it in court.
There are tax incentives linked to patents. For example, in Ireland a reduced tax rate of 6.25% is available for profits from patented inventions and the purchase of patents can be set against profits to reduce tax.
You can use a patent to control access to your invention. For example, you can give interested parties a license to use your invention in return for a licensing fee.
Alternatively, you can sell your patent. But if you sell your patent in full, you give up all rights to the patent.
Your competitors can also file patents. Sometimes, they can use their patent rights to block you from a market. So, it helps to have patent rights to block them back. In this case, you can use your patent rights to negotiate with your competitor for access to the market.
But if you don’t have patent rights to negotiate with, you’re fighting a battle with a butter knife. In which case, you’re toast.
Getting a patent takes time and money. For best results, you should have a strategy in place to get patent protection where it’s needed. For this, you have a toolbox of different types of applications you can use.
If you want protection in a specific country, you can simply file a patent application in that country.
Some countries allow part of the application to be handled centrally in as a single application. This is called a regional application. The most important regional application is in Europe, where a European patent application can be converted into national patents in most European countries including the U.K. (the countries covered by a European patent application can be found here). To put it differently, you can file a single application that covers most of Europe.
We can also file an international application (which is also called a PCT application) which covers most of the world (the countries covered by an international application can be found here). This type of application allows us to buy time – so you can test the market for your invention before you choose the regions and countries where protection is needed. When you choose, you can then make a more informed decision. We can then convert your international application into one or more national or regional applications.
A typical strategy is to delay costs to give you time to find a market for your invention. Until you do, the aim is to cover as many countries as possible for the least amount of money. With this strategy, you have a better idea of your chances of getting a patent and whether your invention is worth protecting before you take on significant costs. If your invention is not worth protecting, there’s no point in taking on further costs.
PREPARING — GETTING READY TO FILE
You know your invention and we know the law. Together, we need to find the most commercially important bit of your invention and decide how best to protect it.
Once we know this, we can draft a patent application for you. A patent application is set out like a recipe, where the ingredients of your invention are listed in the claims and the method of turning those ingredients into your invention are provided in the description and drawings. The claims define your invention.
To get patent protection, we first need to file the patent application at a patent office. We typically suggest filing a national application (e.g. an Irish application) because the governmental fees for filing a national application tend to be low.
Your application will be kept secret and it cannot yet be accessed by the public.
You can file further applications based on your first application. Typically, this needs to be done within a year. We usually recommend filing an international application at this stage because it gives you a route to protection in most countries in the world for the cost of a single application.
If you file an international application, a patent examiner will search for evidence that your invention was known or obvious before you first applied for a patent. The Examiner will send us a report to let us know what was found as well as the Examiner’s opinion of the application.
After the international patent application is published your application is no longer secret. Now you have provisional protection.
OPTIONAL STEP — EXAMINATION
If you want, you can provide arguments or amend your international application and then get the Examiner to review their opinion. This can be useful if only small problems need to be fixed, or if changes are needed to support commercial opportunities.
You need to decide where you want protection well within two and a half years of your first application. We can then convert your international application into one or more national or regional applications.
If you decide to convert your international application into a European patent application, a European Examiner will look at the search report and decide if your application should be granted.
If they don’t think the application should be granted, they will send a report telling us why. We then need to reply to the Examiner’s objections.
There can be several rounds of examination before the Examiner reaches a conclusion.
GRANT OR REFUSAL
If we persuade the Examiner, then your application is approved for grant. Otherwise, your application will be refused.