Patents: what are the benefits and when is the best time to apply?

Unlike some other intellectual property rights (IP), patent protection does not arise automatically and a formal application is required.

While patents are the most expensive IP rights to obtain, if done correctly they can provide you with invaluable benefits.

What are the benefits of a patent?

A patent for an invention gives its owner the right to exclude others from doing certain acts in relation to the invention claimed in the patent. This period of exclusivity to commercially exploit an invention provides numerous benefits for the patent holder, such as:

  1. Exclusive use
    By granting a period of exclusivity to exploit an invention, a patent holder is given the opportunity to recoup its development expenses and establish a product on the market before that invention can be used by others. The exclusive right granted by a patent is a true monopoly. There is no need to show that someone copied a patent or the technology it covers (or was even aware or it) in order to enforce the right against them.
  2. Income generation
    Patents can be extremely valuable assets, and are at the heart of many sectors such as pharmaceuticals, biotechnology, and electronics. Because of the monopoly rights afforded by a patent, rivals would have to enter into an agreement with the holder – known as a licence agreement – in order to use the patented invention. This agreement could generate a substantial income for the patent holder. It is also possible to sell patents or use them as security for loans, both of which can be ways to generate revenue for a business.
  3. Legal protection
    If a competitor uses a patented invention without permission, the patent holder can take action through the courts to stop the infringement of their IP right. Remedies include: obtaining an injunction to stop the sale and distribution of any item infringing the patent, and requesting the delivery up, and/or the destruction of, the infringing items; and seeking damages (if appropriate) for the unauthorised use of the patented invention.

Are there any downsides to patent protection?

The most immediate downside is that the process of drafting, filing and prosecuting a patent application will incur a cost in the thousands or low tens of thousands for one country and in the tens or even hundreds of thousands if protection is sought in many jurisdictions (although an IP lawyer can help to devise an effective strategy to manage and spread the cost).

There is also no guarantee that the patent will ultimately be granted (or granted in a form that is useful), although taking good advice at the start of the process can significantly reduce the risks here. Patent renewal fees also need to be paid and can really add up for filings made in many jurisdictions.

Another downside is that filing a patent application requires you to disclose information about your technology, which will be made public once the application is published. Patents only offer time limited protection (usually 20 years from filing) and in some situations it may be better to protect your technology as a trade secret, which can be protected indefinitely if it never becomes public. An IP lawyer can help you decide which form of protection will work best for you in the long run.

When should you apply for the patent?

When an innovation is made, it is important to think about how it should be protected before any details are released to the public. Releasing any information about the innovation before protection has been sought may remove the ability to obtain patent protection.

A patent will only be granted if the invention is novel. This means that it has never been made public before in any way, anywhere in the world. If the invention already exists and has been communicated to the public, a patent will not be granted. To avoid losing out on the benefits of a patent, you should make an application as soon as possible after searching for, and confirming, that the invention doesn’t already exist.

An early application will not only increase the chances of the patent being granted, but it also reduces the risk of a competitor applying for protection for a similar invention, and thereby obtaining the patent monopoly rights discussed above.

However, when making an application for a patent the invention must be advanced enough to provide a specification in the application detailing the technical information of the invention, along with any drawings of how the invention works. A patent cannot be granted for an idea.

Key takeaway: Patents can be incredibly useful assets and can provide many commercial benefits. The granting of a patent is not guaranteed, nor will it automatically result in commercial success. To increase the chances of a successful application, legal advice should be sought as early as possible.