Should you seek patent protection for your technology? Lightbringer's CEO shares tips
Should you seek a patent protection for your technology or not? This is a key question many startup founders will consider before investing time and money in pursuing patent protection for their ideas. Here is a list of some considerations for your startup before starting your patenting journey, presented by Dominic Davies — Lightbringer CEO and Co-Founder.
1. Novelty
One of the fundamental requirements for obtaining a patent is that your invention must be novel. This means that it should be new and different from what already exists in the public domain. It's important to understand that novelty is not just limited to existing patents, but it also includes any published literature, public presentations, or commercial products.
The details of what it means to be ‘new‘ will be explored in a future blog post but this concept is usually already reasonably well understood by inventors. Basically, has someone described the same idea before?
Well written and very detailed patent applications (especially those from the Lightbringer service) will significantly improve your chances of being able to patent key details that differentiate over the prior art.
Never assume a prior art document will describe all of your key ideas and draft detailed patent applications to increase your chances of success. Our Lightbringer attorneys can discuss this with you in more detail.
2. Inventive Step
Your invention must also possess an inventive step, meaning it must not be obvious to a person skilled in the relevant field. The inventor should never assume they know what it means for their invention to be ‘inventive’. The ‘inventiveness’ of a technology might seem less apparent to the inventor themselves than it can to others, but it will be others who actually decide on the inventiveness. Examiners are strict in their interpretation of prior art and can often be persuaded of inventiveness for ideas that you may consider obvious. In some litigation circumstances (e.g. the US), a jury composed of random members of the public may be asked to consider the inventive step of your idea, and they may be more impressed with the idea that you would expect.
Avoid assessing the inventive step of your invention on your own and consider discussing with a Lightbringer attorney. There are always arguments for inventiveness of an invention that can be leveraged.
3. Patentability
There are some important exceptions to patentability in certain jurisdictions, including methods of treatment in Europe and certain software based inventions in Europe and the US. However, for both these examples, the exceptions are not as broad and encompassing as inventors often assume. For example, many software based inventions are perfectly patentable, as long as they meet certain criteria. You can read more about that at the following links or in a future Lightbringer blog post.
Surgery, therapy and diagnostic methods
Don't assume that your invention falls within the constraints of a patentability exclusion without taking a closer look and discussing with a Lightbringer attorney.
4. Enforceability
Generally speaking, a patent is only useful if you can easily demonstrate that your competitor is infringing the patent. There are exceptions to this rule. For example, you can sometimes request that a court assist you in collecting evidence. However, if you can’t show infringement using the equipment you have available (e.g. cameras, lab equipment, analysis software, etc), then it is going to make the already risky and expensive steps of engaging with the infringer, even more risky and probably not viable.
Therefore, make sure you can think of a way of demonstrating infringement using the equipment you have before spending money on a patent application. Here are some examples:
Possible patent application: A novel bike seat spring.
Your infringement test: Dismantle the bike seat and photograph the bike seat spring to demonstrate infringing design.
Possible patent application: A new material for waterproof clothing.
Your infringement test: Analyze the material of a competitor material using mass spectrometry.
Here are some examples of inventions that might be difficult to identify in competitor products:
Possible patent application: A new algorithm for faster sorting of patient data on a server.
Your infringement test: Probably requires access to competitor source code! This is going to be tough to get hold of.
Possible patent application: An algorithm for locating an object in 3D space using a webcam.
Your infringement test: Probably requires access to the webcam's firmware. This can be problematic under US and European reverse engineering laws.
Without certainty on whether a product is infringing, it will be hard to leverage your patent in negotiations or in court.
Make sure you can think of a straightforward infringement test for a technology before pursuing a patent application for that technology. Our Lightbringer attorneys are ready to discuss this further with you.
5. Quick Design Around
Consider how easy it would be for an infringing competitor to modify their product to avoid infringement. If a competitor can quickly switch to an alternative, the value of enforcement might be low. This is less relevant for mechanical and other hardware-based technologies.
Consider the ease with which a competitor could design around your patent before investing in the application process.
Are you ready to seek patent protection?
If you got this far, there is a good chance your idea will be patentable. At Lightbringer, we understand the complexities of the patenting process and are committed to providing high-quality patent services to help startups navigate this journey. Contact us today for expert advice and access to our state-of-the-art AI tools and services at industry beating pricing.
