10 December 2005

Inventors - the World does not owe you a Living

Last Tuesday, several of the inventors and their supporters who had formed the Manchester Inventors Group met in Manchester Central Library to discuss the future of the Group. The acting chair, Stephen Mansfield, asked each person present why he or she had come to the meeting and what he or she wanted from the group.

Almost without exception the replies were advice and guidance and financial and practical support. There were one or two long and sorry tales of frustration and disappointment. All sorts of people were blamed for those failures including professionals, venture capitalists and the government. One person opined that inventors should be free to invent and that others ought to be concerned with commercialization. A few suggested a political approach such as inviting the deputy prime minister to Manchester so that he could learn of their needs first hand.

To the man who said that inventors ought to be left to invent and that others ought to be allowed to commercialize their inventions, I observed that that was the way in which industry works. Most successful inventions are actually made by bright young men and women with advanced degrees who are recruited from the best universities around the world. Others in their companies or universities apply for patents for their inventions and commercialize their work. These young scientists, engineers and technologists are paid reasonably well for their services - though usually not as well as the accountants, marketers and managers who commercialize their work - but that does not matter. They do what they like doing best which is to work on the frontiers of their science. It is possible for an independent inventor like Lemelson or a Dyson to do very well but it is a lot easier for an inventor like Sternbach who developed 241 new inventions for his employer.

The purpose of a patent is to confer a temporary competitive advantage upon a manufacturer as a reward for showing the world have to make how to make a new product or process. It is not intended to be certificate of attainment or honour like a degree or knighthood but a commercial advantage. It is very much a product of the modern capitalist system. Patents and trade marks did not exist for much of the history of the Soviet Union. There was no need for them when everything was made and marketed by the state.

Where there is demand for a patented product or goods produced by a patented process and the supplier of those goods has the means to enforce them, the rights conferred by a patent can be exceedingly valuable. Absent such demand and such means, a patent is otiose.

The lesson for inventors is to think less about the invention and more about the market. Is there an unfulfilled demand? Can I fill it? Can my solution be protected by law and if so how? How can I resource such protection? One of the reasons why I have set up groups like the Huddersfield IP Forum and assist groups like the Manchester and Leeds inventors is to put that message across. It is an important message and if taken to heart it will reduce considerably the bitterness of many talented and otherwise reasonable people.


David Skul said...

Inventing Something get a Patent

There is one kind of home business that is very different than any other: that of the inventor. If you’ve invented something, the chances are that you don’t have the resources to mass-produce the product yourself. You will need to send the plans and designs off to someone else to make in their factory. When you do this, though, how can you protect you idea against theft by them, or any one else who might see it? The answer is patent registration, which will give you the exclusive right to profit from it.

A patent gives you the exclusive right to profit from an invention for a set number of years. If anyone else tries to sell something that is covered by your patent, you’ll have the legal right to make them either pay you a license fee or stop. Each patent has a number. (You’ve probably seen this on any number of products. Patent pending means that a patent has been applied for but not yet granted.) Your invention must qualify before you get a patent. Not all inventions can be covered by patents. Check that your invention meets the following criteria.

Is it new and secret? You can’t have showed your invention publicly before you apply for a patent. Whatever you do, don’t take your invention around and demonstrate it before you think about patents. Is it non-obvious? Your invention must not be something that would be obvious to experience in your chosen industry. You cannot apply for a patent for a scientific or mathematical theory, or method; a work of art (books, plays, etc.-computer programs are included), a way of doing things or business method. Many of these are, instead covered by copyright. Patents are intended for actual physical inventions.

You need to apply at the agency called a patent office in your country. There are also patent agencies for larger areas, such as the European Patent Office or ultimately the World Intellectual Property Organization. It’s best to get a lawyer to guide you through this and make them sign a non-disclosure agreement. Depending on your country, applying for a patent can either be absurdly cheap or really expensive. You should note that if your patent application is refused at any stage, you won’t be getting your fees back. You can usually apply again, if you want to pay again.

If you have looked at the prices, you might be wondering: what’s the worst thing that could possible happen to me if I didn’t get a patent? The only answer to this is that anyone, to whom you happen to explain your idea or product, can steal it, and you won’t be able to do a thing about it. What’s more, once your invention does come on the market, success will attract many imitators. They’ll probably be able to produce your invention cheaper by sacrificing quality. A patent gives you protection in the marketplace for your home business against competitors.

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John Lambert said...

Thanks for your contribution David. It is good of you to go to so much trouble.

Much of what you say is applicable everywhere but, alas, not everything. For instance, let's take something very basic. You suggest consulting a lawyer in certain circumstances. One of the differences between practice in the USA and practice here is that it would be a patent agent rather than a lawyer who would apply for a grant in this country. The two professions have very different origins. Until very recently it was just not possible to practise both simultaneously. In my branch of the legal profession - I am a barrister or trial lawyer - it is still not possible. The legal and patent agents' professions are converging but they are still separate. There are some patent agents like Marks & Clerk and Harrison Goddard Foote with law firms in their offices. But it is still generally true that you instruct a patent agent to apply for a patent, trade mark or registered design and a lawyer to enforce it in the courts should it be infringed.

However, the biggest difference between Europe and the USA is that the USA enjoys political unity while Europe does not. The European Patent Office does not grant a Europe-wide patent in the way that the USPTO grants a nationwide patent. It merely examines applications for patents on behalf of the 30 or so governments who are party to the European Patent Convention and grants patents on behalf of those governments for individual states. Applicants have to designate the countries for which they require a grant. A European patent designating the UK, for example, is essentually a national patent equivalent in almost every respect to one granted by the British Patent Office. The advantage of applying to the European Patent Office is that one can seek a grant for several states at the same time with the same application which can save some time and some money. The Comptroller of our Patent Office told me that he thought it was worth making a European patent application if one wanted protection in three or more big states such as the UK, France and Germany but not if one wanted protection in only one or two. A European patent can be revoked in one country without affecting its validity in any of the others.

The other consequence of your American unity is that you have a system of federal district courts exercising jurisdiction from Seattle to Miami. By contrast we have national courts whose writ does not generally extent beyond national frontiers. Some states including the UK are subdivided politically. We have three national legal systems in the UK and one of those systems applies a very different substantive and procedural law from the other two.

Litigation is very expensive in all parts of then UK and - this is the disincentive to enforcement - the loser has to pay the winner's lawyers' fees. Since these can be as much as US$1.8 million in quite simple patent infringement cases very few lone inventors or small businesses can afford to contenmplate that kind of risk. Civil cases rarely come before a jury and damages are strictly compmesatory. There is no provision for triple damages for wilful infirngement as there is in your country. Indeed, merely threatening patent, trade mark or design infirngement proceedings is an actionable tort. It is improper for lawyers to agree to share damages so there can be no contingency fee agreements. The nearest we get are conditional fee agreements where a successful lawyer may get a bonus known as a "success fee" in addition to his normal fee. Since the lawyer has to fund the litigation over several years you will not be surprised to learn that there are very few circumstances in which a lawyer will enter such an agreement.

Other differences between your system and ours are that

- it is possible in the USA to apply for patents for software implemented and business method inventions - these are expressly excluded from patentability here by the European Patent Convention;

- the US Patent and Trademark Office has one working language (namely American English) whereas the European Patent Office has three (English, French and German) and grants in those languages have to be translated into Spanish, Polish, Italian, Greek etc if a patentee wants to sue in Spain, Poland, Italy, Greece or Cyprus etc;

- patent applications are almost invariably published before grant unless there is a good reason why they should not such as the interests of national security (in other words, we have no submarine patents ecept possibly for submarines);and finally

- patent claims are construed by reference to the text here whereas in the USA you have the doctrine of equivalents.

I think those differences may explain why inventors from the USA (3,000 miles away) with only 4 times our population apply for 30,000 European patents whereas ours apply for just over 4,000. We lag not only behind you and Japan but also behind Germany (around 20,000 applications, France 7,000 and even the Netherlands with a third of our population 5,000). Furthermore, the law of confidence ("trade secrets law" in the USA) is perhaps more useful here because we have no doctrine of federal pre-emption and the right of free speech does not extend to disclosures of confidential information.

Many of the problems that Americans encounter arise from the assumption that the whole world functions like America. I remember one of my US students in tears because she couldn't cash a US dollar cheque ("check" to you) in London. Each country is different and that is probably to the best.