How to protect your intellectual property

Protecting your product from imitation helps you maintain a strong position in the market, but to do this you need to know what your options are

An introduction to registered IP rights

The main types of registered Intellectual Property (IP) rights are patents, trade marks, and design rights. For all three there is a formal application process. If successful, you will get certain legal rights to stop others using your ideas or IP.

These rights have real value for companies. Research from the European Patent Office (EPO) and the EU Intellectual Property Office (EUIPO) found that companies with patents had 36% higher revenue per employee: 32% higher for design rights and 21% more for trade marks.

Another EPO/EUIPO study into registered IP rights and start-ups found that those with patents and/or trade marks were twice as likely to deliver a successful exit for investors, which is why business angels and venture capitalist firms are interested in IP.

In this article, we’re focusing solely on patents. We’ll cover trade marks and designs in later articles.

What is a patent?

A patent gives its owner the exclusive right to stop others from making, using, and selling or importing a product or service featuring the patented innovation. Once granted, it can be renewed, usually up to a maximum of 20 years in total.

This is a powerful right. If you have invented a new material, product or process, anyone you talk to about funding is likely to ask what patents you have, what countries they cover, whether you have any applications in progress, and how you plan to defend and develop your patent portfolio.

Patents are country or region-specific, with a filing fee for every country or region you want to protect your innovation in.

To be patentable, something must be:

• novel – which means it can’t have been written about, pictured, or discussed publicly before the application.
• inventive – for example, it cannot be an obvious improvement to something that already exists.
• either something that can be made and used, a technical process, or a method of doing something

It’s worth noting that software with a technical effect can be patented. As the UK Intellectual Property Office (IPO) says: ‘Software to control a driverless car could have a patent, while a chess playing app could not.’

Also, in your patent application, be ready to describe the invention in such a way that means someone else can reproduce it once your patent expires.

Although IP-rich tech companies might prefer to use trade secrecy laws to protect their innovations,  it is advisable for them to have a patent application ready to file if it looks like rivals are close to working out their innovation.

Patents are not cheap. In the UK, it costs £310 to file and get a patent. You should also factor in legal costs for getting a patent application granted as you will need advice from a patent attorney, both on drawing the original application up and on navigating the process, and possibly dealing with objections, legal challenges, and appeals.

It usually takes several years to complete the process – the IPO will take time to conduct searches to check that your idea is workable, that it hasn’t been disclosed already, and that someone else hasn’t already been granted a patent for the same idea. The IPO will publish your application around 18 months after it receives it, at which point other people may raise objections.

Once you patent is granted (in the UK), you’ll have to pay annual renewal fees on the fourth anniversary of the date you filed the original application. It’s currently £70 for a fifth year of protection, rising to £610 for the 20th year.

You can’t patent everything, everywhere, all at once

Since patents are granted for countries or regions, unless you are one of the world’s biggest companies, you can’t patent everything, everywhere, all at once. You need to plan your patenting strategy carefully, initially targeting the countries or regions you are most likely to be operating in.

There are international agreements that allow patents to be registered for multiple countries in one application – for example, the European Unitary Patent, administered by the European Patent Office. Also, filing in some territories gives a company priority status in others. This means they have a time window to work out where they want to file next, and to raise the funds to pay the fees.

10 things to consider when reviewing your patenting strategy

1. Are our patents still delivering value to the company?
2. If they are not generating significant revenue, are they performing a defensive role, stopping others launching rival products or services?
3. Could they be the basis for new/different products or services?
4. Is there potential value in licensing the patent/s to non-competing companies in other industry sectors who could use them?
5. Could you license them to a partner in another country, which may be a cost-effective way to expand geographically?
6. If they are no longer core to your business, is it worth exploring selling them?
7. What is going on in your industry, or related industries, or in relevant research fields, that could potentially threaten the value of your patent(s)? Monitor academic publications and other people’s patent filings.
8. Have you got trade marks or registered designs covering the products and services your patent applies to?
9. Are you making it clear on your website, on product packaging, and in other communications that you have patent protection, or that you have applied for it?
10. Do not use the ‘P in a circle’ symbol – it indicates copyright for a sound recording, not a patent. Instead, use the words ‘Patent’ and then the registration number; or ‘Patent Pending’ if your application hasn’t been accepted yet.

Finally, never forget that there are other intellectual property rights, both registered (like trade marks and registered designs) and unregistered, like copyright, which can help you protect your IP – and never rely on patents alone.

All these rights work in synergy – the EPO/EUIPO research shows how owning more than one type of registered right can amplify the value of each type.

This article first appeared on the NatWest Business Insights page here.

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