September 3, 2012 8:18 pm

A victory for Apple but inventors still lose

As patent numbers grow, their scope becomes harder to protect, writes James Dyson

Apple’s $1bn win over Samsung in California should give inventors cautious optimism. It was an overwhelming victory in spite of a vacillating process that puts the onus on the patent’s owner to prove it has been copied, rather than the infringer to prove it has not.

Lately, intellectual property cases have shown the global patent system to be complex and fickle, seemingly promoting plagiarism over progress and offering the holder little, if any, protection. Innovation is burdened by a double standard, by which it is deemed immoral to forge a painting or rip off a handbag, while copying others’ technology or industrial design is practically encouraged as part of healthy global competition. But it is akin to theft.

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Apple won on home ground but in South Korea it received a split decision against Samsung. On Friday in Tokyo, Samsung prevailed. And in July in the UK, Apple lost to HTC. The British judge ruled that HTC’s slide-to-unlock function was a clear technological evolution, and thus not an infringement.

I have borne the brunt of similar rulings. Dyson lost a case in the UK on the argument that there was no other way to design a cyclonic canister vacuum (the one that you pull, rather than push). As if the Dyson design in issue was obvious, unquestionable, almost innate.

But, if it was so obvious, so universal, why had it not been invented before? New ideas take time and money. At Dyson we invest more than $2m a week in research and development. We secure patents to protect our ideas from copycats pumping out inferior counterfeits. In short, if patents are to be meaningful they must be enforceable.

The patent system’s capriciousness has tarnished its reputation. Companies are trading patent portfolios, while patent trolls prey on young companies, which often don’t have the means to apply for and secure an enforceable patent. We need to remind ourselves that patents serve an important purpose: not to stop invention but to spur it.

When the Statute of Monopolies was introduced by King James I in England in 1624, it stipulated that patents would only be granted for “projects of new invention”. Novelty is now increasingly difficult to prove. Patents are by nature finite; their language has to be very specific and technical. So, as patent numbers grow, their scope becomes narrower and harder to protect.

One of my first inventions was the Ballbarrow: a wheelbarrow that used a pneumatic ball so it didn’t sink into the mud. When the patent examiner looked at it he saw a beach ball and a wheelbarrow. So, he asked me what I’d invented. Technically, the novel bit was the way the ball was mounted to the barrow. That became the invention. In my naïveté, I neglected to file the patent in my own name and lost all rights.

The slim scope of modern patents means others can get very close to the essence of your invention without infringing. The language of a patent is what lawyers fight over. How close is the infringer’s design to what is described in the patent?

Once a case gets to court, a patent holder nearly always has to fight off allegations that its patent is not novel – when this should have been established by the Patent Office. The odds are stacked against inventors. PwC reports that only 38 per cent of patentees successfully enforced their patent in court from 1995 to 2009.

As patents become harder to define, afford and defend, many manufacturers think it is fair game to copy intellectual property. Samsung defended its smartphone by saying it was “following the technology”. This is like telling the police that you were speeding to “follow the flow of traffic”. You are still breaking the law.

We cannot afford to devalue patents and technological innovation in such an offhand way. When it is easier to profit from copying than from investing in research and development, you curb invention.

With Apple and Samsung sparring in almost a dozen countries, it is easy to forget that patents go beyond smartphones and intangible technology portfolios. But patents lead to revolutionary ideas and advances. We need compatible national patent systems – enforced uniformly around the world – that can deal with the realities of modern technology. They need to grant more robust patents and take copycats off the market faster. We need judicial systems to recognise that new ideas have value and should be protected.

The writer is founder and chief engineer of Dyson

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