Patently obvious that patents are crucial

WEEK NINE: If your business idea could be replicated, you should get it protected, writes CAROLINE MADDEN

IMAGINE YOU’RE an inventor and you’ve spent years in your garden shed developing a one-wheeled motorbike or metal-detecting shoes. Finally, you come up with the perfect design and take it to a manufacturer to discuss the possibility of producing a small quantity of your product.

The price he quotes seems high, so you tell him you’ll need some time to think it over. A few weeks later, to your horror, you spot people zooming around on unibikes, or finding coins and jewellery with the help of suspiciously familiar-looking footwear.

Unfortunately, in business, it’s not just a matter of coming up with a great idea. If that idea can be replicated by someone else, then you’ll have to think about protecting it.

One way of doing this is to apply for a patent, which, if granted, will give you a monopoly on making, marketing and selling your product for a certain length of time. However, patents are territorial so, for example, an Irish patent is only valid in Ireland.

A patent will give you the exclusive rights to exploit an opportunity in a specific market with a specific product, but they do not come cheap. According to Fergal Brady, an examiner with the Irish Patents Office, a 20-year Irish patent typically costs €5,134 over the life of the patent, when filing fees, search fees, grant fees and renewal fees are factored in.

In addition, it is advisable to consult a patent lawyer to ensure the application is properly drafted, and this ramps up the costs hugely. “Getting a patent is a business decision,” says Brady. “It’s going to cost you money, so you need to look at that and say, ‘Is it a sound investment?’”

Getting a patent granted is not just a matter of paying up. The patent application must include a description of the technical features of the product and must explain what is inventive about the invention. The Patents Office then conducts a search to see whether this technology is, in fact, new (and not an obvious adaptation of something already known). If it’s new, a patent will be granted.

One mistake commonly made by inventors and small businesses is that they apply for a patent after they have publicly disclosed – or even started selling – their invention, Brady says.

“A lot of people apply for a patent because they’ve been selling the product out of the back of their car or to friends and someone says, ‘You should get a patent for that’. But if they’ve been selling it already, it’s too late,” he says. “You must make sure that the first public disclosure is to the Patents Office because, if it isn’t, [the patent] might be open to challenge.”

Similarly, if you explain what your invention does and how it works on a television programme like Dragons’ Den, or even in a competition like the BT Young Scientist Technology Exhibition, you will seriously jeopardise your chances of getting a patent granted for that product.

“We recommend to people who are thinking of entering things like the Young Scientist, which involves displaying ideas to the public, that if they feel that they want a patent, they should really apply for it before it goes on display,” says Brady.

He recalls a case where an Irish patent was challenged based on the fact that the product was advertised on the company’s website before the patent application date, which counted as public disclosure. If it can be proved that your product was disclosed to the public before the patent was applied for, then the patent could be revoked.

For students – or indeed any private inventor or small company – without the funds to go through the process of getting a 20-year patent, there is a cheaper alternative. A 10-year Irish patent can be obtained without the necessity for a patent search and is considerably cheaper. The downside is that you cannot sue someone for infringing on this type of patent. However, perhaps surprisingly, patent infringement is actually quite rare.

Watch John Power of Aerogen discuss the opportunities and pitfalls of patent issues at irishtimes.com/business/education or on eoy.tv, the dedicated website for the series

Next week:Managing a brand and taking it onto an international stage