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Many of us have ideas and dreams, which we hope may translate into commercial success. Increasingly, we turn to patent protection to safeguard the products of our ingenuity.
How far-ranging are patents?
Patents cover any new, useful and unobvious invention. Amazon’s 1-Click checkout system, Viagra, the telephone, the lightbulb, Windows software, the Dyson vacuum cleaner, a novel windsurf board, Lego toy bricks, the artificial heart, cat’s eye road reflectors, the computer mouse, and a unique cut of a diamond are all examples of past or current patents filed worldwide.
Patents are global and cover hundreds of thousands of products and processes you may encounter in daily life, including some types of prescription pills, flatscreen televisions, windscreen wipers, pacemakers, satellite systems, plastic products. The US Supreme Court went as far as to say, with reference to the manufacture of a living bacterium, that “everything under the sun that is made by man” is technically patentable.
Can I patent an idea?
No matter how amazing your idea is, you can only protect it with a patent if you get it out of your head and turn it into a working prototype or a detailed description of an actual working thing or process that people are willing to pay for.
Why are patents controversial?
In the dotcom era, protection under “business method patents” was so extreme it created a backlash against what critics call the “silliness standard”. Even a golf putting method could be protected. These extreme cases are becoming fewer in number. Some also argue that a forest of patents tends to impede honest innovation, because the cost of clearing new inventions for use and patenting is often prohibitive for small and medium-sized enterprises.
Some recent patented inventions have spurred disruptive business innovations and have created “new normal” practices in some sectors.
The spotlight is increasingly on those patents that corner market segments. Google, for example, has potentially started what some have called an arms race by filing patent applications covering “machine learning” which help classify, cluster, organise and prioritise documents.
The Silicon Valley saying “it’s all in the algo” is especially resonant today, when there is a rush to file patents for newly invented programmes on software algorithms. Algorithms are strictly speaking not patentable. These filings are pushing at the edges of acceptable patent protection. This trend is likely to continue, especially where Big Data is concerned. Tyron Stading of CPA Global, a specialist in intellectual property software, says the “number of patents filed in the areas of predictive analytics, data mining and intelligence technologies have doubled in the last five years”.
What can you patent?
You cannot get a patent on any old thing. But show the world something new and the chances are it might be patentable. Ensure that the invention is new as in “inventive” (not just an obvious modification of something that already exists) and has an “industrial application” (in other words something that can be made or used). Given these criteria, some ideas are generally accepted as being non-patentable. As Sean Dennehey of the UK Intellectual Property Office explains: “Some of the things you can’t get a patent for are discoveries and theories, ways of presenting information, doing business or playing games, and works of music, art or writing (which can be protected by copyright). Computer programs as such aren’t patentable either, but many patents are granted for inventions enabled by computers.” See also www.gov.uk/patent-your-invention/what-you-can-patent
How do you acquire a patent?
Feel the need for speed. Patents are time-critical, so stake your claim first at the patent office before your competitors beat you to the prize. It is “first in time, first in righ”. The one who is first past the post, wins.
Can I lose a patent right?
Yes, if you publicly disclose your invention before filing. You will fall foul of the nondisclosure requirement if you publish a synopsis of your invention on your website, a chatroom, in a technical newsletter, by giving a lecture at a conference, by describing your invention to a potential customer or by bragging about it on social media. If you must discuss your invention with someone, you should ask that person to sign a nondisclosure agreement.
Patent or trade secret?
While patents have traditionally been the initial default mechanism for protecting innovative ideas, “ it is becoming increasingly common for companies to look at trade secret protection as an equally useful, and lower cost, IP option,” says Gerry DePardo, a US trade secret lawyer. Patents do not last for ever and if your invention is of the type that people will want to use or exploit for decades, and is of the sort that people cannot reverse-engineer, it might make sense to protect it as a trade secret. Coca-Cola with Merchandise 7X, and Lea & Perrins with its sauce formula, will attest to this. In today’s knowledge economy, industry sectors such as software, financial services and data analytics are no longer using patents as the only weapon in their intellectual property arsenal.
Patent litigation — deep pockets required.
Keep in mind that patent cases constitute the most expensive form of litigation. Some disputes continue long after the patent has expired — as is often the case in the oil and gas, and pharmaceutical industries.
When and to whom was the first patent granted?
All foodies will rejoice to learn that in 200BC, Athenaeus officially reported that the Sybarites in ancient Greece granted a monopoly to a pastry chef for his “peculiar and excellent” pastry invention.
Frederick Mostert is a research fellow at St Peter’s College, Oxford, and author of From Edison to iPod — Protect Your Ideas