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There be dragons…


24th Mar 2015

The final episode of the latest series of Dragons’ Den has just aired, a show I love, but…I can’t help but feel that they do a disservice to intellectual property and the public perception of it.

In that final episode, yet again, Deborah Meaden was called upon to provide an in-depth assessment of the patent protection afforded to a product up for funding. In mere TV moments Deborah does what would likely take a qualified patent attorney hours, and only after a great deal of searching for relevant prior art documents by skilled searchers.

If she was in the patent profession she would certainly be in high demand to provide definitive due diligence for but a few pounds. In this case, Deborah firstly did not recognise that the document she was reading was a patent application and so not yet finalised in terms of the protection it offers, and then she decided that the pending patent application was worthless as it was too limited, and a third party could easily get around it.

Time and again, the Den’s patent expert holds court (pardon the pun) on what the patent protects, its validity, and how a competitor could easily work around it. Deborah may or may not be correct in her assessment, but that isn’t the point. The point is that the viewer is invariably left thinking patents are worthless.

As a patent attorney, this is frustrating. Aspiring entrepreneurs watching are regularly being told “you need a patent, or we can’t invest…but it’s probably not worth the paper it’s written on”.

The Dragons’ ‘in-depth’ knowledge of intellectual property is not limited to patents though. In one episode this series, Peter Jones suggested that Apple owned all of the “i” trade marks, and that they could stop anyone using any “i” trade mark whenever they liked. Deborah Meaden went further and said that not only could Apple do that, they could take all of the profits associated with the product bearing that “i” trade mark. This is even more bold than the instant patent analysis, and possibly even more misleading. There is a very good summary and analysis here by the IPKat (an expert but highly readable IP related blog) on this aspect, if you’re interested.

After watching the show, one would be forgiven for thinking on the map showing the way to patents, it’s marked “there be dragons”. Are patents really that scary?

Clearly not, and there are a few simple tips for entrepreneurs, or indeed SMEs, to help them along the way:

  1. Don’t tell anyone about your invention until you have filed a patent application – NDA’s are ok if you simply have to speak with someone, but can be difficult to enforce.
  2. Do understand that the process of obtaining a granted patent can take years.
  3. Don’t be disheartened about point 2.
  4. Do realise that even a patent application is a tool, and a potentially powerful one – use it to obtain funding; use it to deter competitors; use it to lure or keep good staff; or just simply sell it as an asset.
  5. Really, don’t be disheartened about point 2. It can even be your friend to delay costs, and to allow you to modify the scope of patent protection if you need to catch an infringer.
  6. Do get advice, and get it early in the process. Patent attorneys will happily have a chat and advise whether you are too early in your project, and advise when to come back. On the other hand, being too late could ruin all chances of patent protection – see point 1.

If you want to have the point 6 chat, please do get in touch with one of our attorneys. It may even save costs in the long run, and can help in the decision-making process of how far, and fast, to proceed with your project.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.

Author
Paul Loustalan
Partner
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Would you like to know more? You can talk to Paul Loustalan who will be able to help. Call +44 (0)20 7242 0901

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