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Should you file for a patent?

Conventional wisdom: if you have an idea, file for a patent. But it’s really not that simple. Of course there are clear advantages to registering a patent, but there are equally compelling reasons not to. Really, it all depends on what kind of idea you have, and whether a patent will help, or hinder, your business.

Why you might need a patent

Filing a patent is seen as a entrepreneurial milestone in many circles. If your business doesn’t use a patented invention, is it really innovative? Is it really disruptive? The answer is probably no. But you shouldn’t file for a patent as a box-ticking exercise. You need to file one for the right reasons. Some of those reasons are as follows.

Patents protect your ideas

The best reason to get a patent is also the most straightforward. The basic definition of a patent is a legal document that stops others copying and profiting from your invention. If a rival company does copy your invention, the only way to stop them is to sue them for patent infringement. If you have any ideas or inventions that you need to keep safe, you may well need a patent. It’s definitely worth investigating.

Patents can attract investors

On the UK TV show Dragon’s Den, the “dragons” — a group of successful investors looking for new opportunities — nearly always asked investors one question about their inventions: Is it patent protected? The conversation would then go one of two ways. If the answer was no, the dragons would often lose interest. This entrepreneur has pitched their invention on national television with no protection. Unless there are extenuating circumstances, there’s nothing stopping a savvy viewer from copying it. On the other hand, if the invention is patent protected, the dragons’ ears would perk up. They were now being given the chance to invest not just in a new business, but in the very idea itself.

This plays out in the real world as much as it does on reality TV, meaning registering for a patent can really help your business grow.

Why you might not need a patent

Between 1992 and 2005, Alice Corp. invented software to remove some of the risks of financial trading by making transactions through a third party. In 2002, it emerged that rivals CLS Bank International were using almost exactly the same software to do almost exactly the same thing. This angered the higher-ups at Alice Corp. But luckily, they had something they could do about it. They had a patent.

Alice Corp. filed four separate patents covering elements of their invention, the final one being issued in 2010. As soon as they found out about CLS Bank, they alleged infringement. The two companies did not settle, and the dispute ended up as one of the biggest patent lawsuits in US history. Shockingly, the court sided in favour of CLS. The reason? Alice’s inventions were deemed ineligible for patent due to their abstract nature. Alice Corp. could do nothing to stop another company using their invention.

We can learn a lot from Alice Corp. v CLS Bank International. Namely,

Not all ideas are patentable

The case was seen as a landmark for the way it established that computer software is not always specific, unique and new enough to qualify as legally patentable.

If your idea could be considered abstract — especially if it relates to software — it’s worth seeking expert advice as to its patentability before you start the filing process. If you’re not sure if your idea is patentable, contact us today to find out more.

Patents are expensive to defend

The worst part of Alice’s entire ordeal was this: They had to go through the long, stressful process of filing four separate patents over an entire decade for absolutely nothing. Then, they had to pay for an expensive Supreme Court lawsuit, again with no results. If they’d known their ideas were not legally patentable, they would have saved time and money, and they could have focused on protecting their inventions through other means.

Not all ideas are worthwhile or original

Unrelated to the Alice v CLS lawsuit, but still an important piece of advice. It might not be something you want to hear, but your latest invention may have no useful business implications. If you’ve invented a piece of software that can automatically read entire Shakespeare plays and condense them into bite-sized, revisable chunks, it’s worth immediately seeking a patent before Sparknotes tries to emulate it. If you’ve come up with a way to make connecting to WiFi more difficult, it’s unlikely to make you any money.

Then there’s the issue of inventing something someone else has already patented. If you’ve concocted a way to turn faces into emojis, the latest iPhone can do that already, and Apple probably have legal protection for it.

The best way to avoid trying to patent something that’s already patented is to perform a patent search. This involves scouring the patent landscape for inventions similar or identical to yours, leaving you fully informed before you decide to, or decide not to, file a patent.

If you think you may need a patent for your business, get in touch today.

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