Why (or why not) not get a patent?

As mentioned previously, a patent is a document that stops competitors from making, using or selling your invention (without permission or a licence, of course).

Patents are a great way not only to protect your idea, but to generate something that adds real economic value to your company. However, it’s not all rosy, all of this is done in exchange for publishing your patent, meaning everyone can see the details of your invention – including your competitors!

This means that your competitors could ‘reverse engineer’ your solution, by deconstructing your product to establish how it works. They could then create a slightly different invention and file for their own patent, and/or compete with you directly by launching this new innovation.

Certain entrepreneurial television programmes and articles have in some ways ‘scared’ us into thinking the only way to protect a new product is through a patent. This isn’t always the case. You may be able to protect your intellectual property by creating a strong brand and an engaged community, a strong team, investment and being able to ‘out-spend’ potential rivals – we also look at ‘trade secrets’ below.

Patents, and other forms of protecting your intellectual property, can be costly. There are also additional costs in terms of enforcement. If someone breaches your IP, it’s up to you to take legal action to defend yourself – this can be a costly process, in terms of money, time and energy. It can be a huge distraction that may take you away from the important tasks of growing your business.

On balance, a patent isn’t right for everything – timing is also important too. For some, patent and other Intellectual Property protection is essential; however, for others, less so. If you are going to go down this route, ensure you are doing it for the right reasons and get the right advice. It’s vital to speak to a specialist here to get the right advice for your specific circumstances.

You can search for what’s known as ‘prior art’ online through platforms such as Espacenet and Patsnap – meaning you are able to see all of your competitors’ inventions too.

When it comes to filing a patent, we strongly recommend engaging with a patent attorney or IP lawyer, as a result, the process can take months and can cost thousands of pounds – but at least you know it will be done right!

Patents last 20 years from the filing date of the application, and you therefore need to renew just like registered designs. Also, UK patents don’t protect you in the EU or USA so you need to file separately to get protection in new geographies.

Sometimes it’s better not to tell anyone about your inventions and this is called protection through Trade Secret!

The good news is you can still sell or licence your IP through Trade Secrets. However, you need to exercise trust in your founding team for this to work well! Trade secrets can also add a certain mystique which can have benefits from a marketing perspective.

Famous Trade Secret examples

• The formula for Coca-Cola is protected under Trade Secrets.
• The process of putting Gore-Tex material together.
• KFC’s original recipe with 11 herbs and spices.

Top tip: trade secrets work really well for software algorithms, as these are typically very challenging to protect with the other types of IP outlined above.

Over to you

Have you got any examples of patent infringement? Do you think it happens often? What sort of businesses might not need a patent?