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Patents
A patent protects a new invention i.e. typically a new machine, product or process.
Software can be patented if the requirements for patentability below are met.
Patents are costly to obtain and enforce. Accordingly, it is only worthwhile applying for patents if the new invention is both difficult for your competitors to design around and has commercial value to your business. We can assist you in this process.
If you are aware that your competitors own or are starting to apply for patents, then this is generally a good indicator that you should also be thinking about doing the same.
A patent is a territorial monopoly right that allows you to stop others making, using or selling your new invention in most cases for 20 years. For this reason, potential acquirers and financial backers (including venture capital companies) look favourably on companies owning patent portfolios.
A patent is an asset which creates and adds value to your business. A patent can be exploited using the conventional means through licensing, sale or by using it as security to raise finance from a lender such as a bank or venture capital company.
Requirements for Patentability
There are 4 legal requirements to satisfy before you can obtain a patent in the UK. Please contact us for the application of how these requirements apply to your invention.
The first is that the idea must be novel or new. This is a complex area of the law and means that prior to filing an application for a patent, it must not have been disclosed to anyone anywhere in the world other than under conditions of confidentiality. Therefore, if you show any new product or idea to a third party and there is not a non-disclosure agreement in place, the product or idea may no longer be patentable. So before you apply for a patent only provide other people with information about your invention in strict confidence under the protection of a written confidentiality agreement.
The second is that the idea must be inventive. Only things which involve a significant degree of originality and provide a clear advantage over that which is already known can be patented or, put another way, a skilled person well informed and experienced in the field must not view the idea as something obvious.
The third is that the idea must be capable of industrial application i.e. the invention must be something that can be worked industrially or relate to an industrial process. Practically, most things are capable of industrial application. Few inventions are excluded from patentability for this reason.
And the fourth is that the idea must not be excluded from patentability by law. Certain specific categories of invention are expressly excluded by law. Although software itself appears in one of these categories, you can obtain patents for software if it can be demonstrated that the software has technical character and effect. There is case law as to what classifies as technical effect but some general examples are:
- Some technical advance on the prior art in the form of a new result i.e. a substantial increase in processing speed;
- Instructions contained within a software program that cause or facilitate a technical process to happen outside of the computer; or
- Instructions contained within a software program that solve a technical problem lying within the computer
Whilst
you should seek legal advice in relation to your specific
circumstances, an increasing number of software inventions are being
patented. For further details see Patenting Software.
Obtaining a Patent
The system of registration you use to obtain patent protection is dependent on where and in how many countries you want patent protection. Obtaining a granted European patent on average takes 3-4 years and obtaining a granted UK patent on average takes between 2- 4.5 years. You may also want to consider the Patent Co-operation Treaty (PCT) method of obtaining patent protection for more international coverage.
A patent is a complex legal document and we strongly recommend that you use a patent agent to draft your patent application. We can help you to find the right patent agent. In general, the more complex the technology the higher the drafting costs will be.
If a patent agent is used, typically costs for drafting and filing an application start around £5,000 for Europe and £2,000 for the UK; and the total costs of owning a patent (from birth to death) are somewhere in the region of £30,000 - £40,000 for Europe (depending on what European countries are covered) and £6,000 - £10,000 for the UK. So not a cheap business.
Maintaining and Enforcing a Patent
Once you own granted patents, to leverage maximum commercial value from them, you may want monitor third party activities, by for example, setting up a patent watching service. You should also be prepared to litigate in the event that a third party is infringing any of your patents and refuses to cease infringing and/or settle. If you have a strong case and you win, you may be awarded damages by the Court to compensate for your loss. On the other hand, if your case settles before trial, your litigation arguments can give you scope to leverage favourable licence fees or royalties by way of settlement.
If you are sued for patent infringement or suspect that a third party infringes one your patents, we can advise on your chances of success, devise a litigation strategy tailored to your business model and where necessary litigate in the Courts.