5.15 Intellectual property and patents
At any stage of the innovation process, from invention to diffusion, a bright idea with market potential can be a target for unscrupulous copying. Or, as you've seen with simultaneous invention, people might be working on similar ideas in parallel and the origins of inventive ideas might be difficult to identify with precision. So it is sensible for inventors to establish their claim to a particular invention and to protect it against unauthorised exploitation by others.
There are different forms of legal protection to guard against the copying of intellectual property. The concept of intellectual property allows people to own and control the results of their creativity and ingenuity in the same way they own physical property. The most well known of these is the patent, which is an intellectual property right relating to inventions. It gives a right to stop others from exploiting the invention without permission.
Patents are a means by which inventors are granted, by the state, exclusive rights to make, use or sell a new invention for a limited period (16–20 years in most countries) in exchange for agreeing to make public the details of their invention. The word patent comes from the Latin litterae patentes, meaning open letters, as in an official document that was open to inspection by all. The patent secures for the inventor a temporary monopoly protected by law and the state secures an addition to the body of technological knowledge that encourages further invention, technological progress and wealth creation.
A patent application is required to contain a description of the invention and the reasoning that led to it in sufficient detail to enable it to be reproduced by a third party. It often contains background information on previous related technology (known as prior art). Therefore patents provide an enormous amount of technical information that is used by many individuals and companies (Figure 20).
Once granted a patent gives an invention the legal status of personal property that can be sold or bequeathed to heirs of the inventor. In addition the owner of a patent may authorise others to make, use or sell the invention in exchange for royalties or other compensation.
According to the, to be granted a patent an inventor's product or process must satisfy four criteria.
It must be new – the idea must never have been disclosed publicly in any way, anywhere, prior to the claim being filed.
It must involve an inventive step – the idea must not be obvious to someone with a good knowledge and experience of the subject.
It must be capable of industrial application – it must take the physical form of a substance, product or apparatus, or of an industrial type of process.
It must not be excluded – an invention is not patentable if it is of a type listed as specifically excluded, although such lists vary in different countries.
In 2005 the UK exclusions were:
a scientific theory or mathematical method
an aesthetic creation – literary, dramatic or artistic work
a scheme or method for performing a mental act, playing a game or doing business – unless it has physical features such as special apparatus
the presentation of information, or a computer program
a new animal or plant variety, a method of treatment of the human or animal body by surgery or therapy, or a method of diagnosis.
While in the UK you cannot patent computer programs, new plant varieties or human DNA, patenting is allowed on some of those categories of invention in the USA. Europe and the UK are coming under increasing pressure to adopt US practice.
There are other forms of protection for intellectual property. The design features that distinguish one product from another can be protected by means of registered designs. Sketches and drawings for a new product can be protected by design right, which is an extension to copyright that protects an artistic or literary creation. Words or symbols that are used to distinguish goods or services from rivals in a similar field can be protected by trade and service marks.
Edison was a great believer in the patent system and over his lifetime was granted more than 1000 patents. However there is a dilemma for individuals and companies considering patenting. Once granted, copies of the patent application are publicly available.
It has been known for unscrupulous companies to manufacture an invention without permission from the patent holder. Sometimes this occurs after an inventor has shown a company an invention in an attempt to persuade them to invest in it. Sometimes copying occurs after launch when a rival company might reverse engineer a promising innovation and produce its own version. Individual inventors are particularly susceptible to this kind of treatment as patenting is expensive, especially if worldwide protection is needed, and the only means of defending patent rights, if they have been infringed, is through the courts.
While large companies might be in a position to take such legal action few individuals can afford it. Rare examples include Edison and Bell, and more recently Ron Hickman and James Dyson. Ron Hickman, the inventor of the Workmate portable workbench, spent more than £1 million in fighting infringements of his patents as part of his agreement with Black & Decker, to whom he had licensed production of his invention. And in 2000, James Dyson sued Hoover whose Triple Vortex bagless cleaner was held to infringe Dyson's 1980 patent for his cyclone cleaner.
In order to avoid the problem of infringement some companies choose not to patent but rather to keep their invention secret from competitors. This way they hope to benefit from being ‘first to market’ with a new product and capture a large market share before their competitors come up with a rival product. (There's more on this and other corporate innovation strategies in Part 3.) Because of reverse engineering it's harder to keep product inventions secret compared with new processes. You'll see in a later example that the company 3M chose not to patent the new machines it invented to manufacture its Post-it adhesive note pads though it did patent the pads themselves.