Any inventor who has taken a closer look at patents knows that each new patent application is made public after 18 months. Consequently, entrepreneurs who prefer to keep their invention under wraps tend not to file a patent application. But is that really the best strategy?
The other day, I spoke to a small-scale robot builder who had not lodged a patent application because he wanted to prevent his peers from copying his invention based on his patent application. What he had not taken into account was that one of his rivals had come up with the same idea and had applied for a patent on it. A bitter pill to swallow, considering that the robot maker had actually done everything right. He was ready to enter the market and had managed to keep everything completely confidential.
But precisely because he had been able to keep his creation secret so effectively, it was not yet in the public arena. Therefore, patent law deemed it new in terms of the date the application was lodged, and could not the date that he first came up with it into account. This is why his rival was able to walk away with the patent, even though the robot builder had invented his robot before any other competition.
Right of prior use
At present, most European patent laws take this sort of situation into account. After all, there is such a thing as the ‘right of prior use.’ This means that, despite the patent, the small-scale robot builder is also entitled to make and sell the robots. But that didn’t solve anything. After all, the right only applies within your own country, whereas the market is international. What’s more, he is simply not capable of making all of the robots himself. He was actually planning to extend licenses to larger robot builders. But now that was no longer possible. That right of prior use does not stretch that far.
Hindsight is a wonderful thing
So, what could the robot builder do then? Should he have publicized his invention? In doing so, he might have been able to prevent the rival from procuring a patent. But at the same time, he could not have done anything to stop it from being copied. And licensing something that has already been publicized was not an option either. As it turns out, the robot builder would have been better off if he had applied for a patent – before his rival did. Which just all goes to show how important a patent application really is for his business strategy. Because, in order to make money from licenses, you have to have ownership of that technique in the first place.
Core concept of the invention
Yet even so, the robot builder never wanted to apply for a patent because that would have brought it all into the public arena. Except that’s where he got it wrong. Applying for a patent and keeping things classified can both be done at the same time. After all, a patent application does not have to include a design specification for the robots, but merely a description of how the invention works. I’m not allowed to say anything about the robot builder’s invention, but let’s suppose it concerned a robot that can sand and varnish at the same time. The invention is not so much about sanding or varnishing, but about how to prevent dust from sanding from coming into contact with wet varnish.
Therefore, the patent application should explain how you can prevent any sanding dust from touching wet varnish. That is the core concept of the invention. And that is all the patent application needs to mention. What is not considered the core concept of the invention does not have to be included. Therefore, it does not need to specify which materials have been used for what, which sanding unit or lacquer unit is most suitable, which abrasive pads or varnish qualities work best, or the algorithms that the robot uses to navigate and know where it has been. Nor the manufacturing process or any collected processed data. This can all be kept confidential.
The secret to applying for patents
In short, applying for a patent for an invention or keeping this a secret does not pose a conflict of interest. Both can be done at the same time. It depends on your strategy as to what you are filing a patent application for and what you want to to keep a secret.
About this column
In a weekly column, alternately written by Buster Franken, Eveline van Zeeland, Jan Wouters, Katleen Gabriels, Mary Fiers, Tessie Hartjes, Hans Helsloot and Auke Hoekstra, Innovation Origins tries to find out what the future will look like. These columnists, occasionally supplemented with guest bloggers, are all working in their own way on solutions for the problems of our time. So tomorrow will be good. Read previous articles in this series here.
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