The Patent Protection Problem in the United Kingdom - Essay Example

Task: The Patent Protection Problem in the United Kingdom (UK) Patent and patent protection The main aim of a patent is to protect an individual’s invention (s). This also includes the protection of how the invention (s) works, what it does, how to do it, what it is made of and how it has been made. Individuals who have been granted a patent always have the legal authority to take action against an individual who tries to take, make use, import or even sell the idea or the invention itself for their personal gain (without their permission). From that, it is worthy to note that while the patent owner (inventor) has the capability to sue any individual who may try to take their work without permission, they are subjected to fund for their legal action as well as their legal representations. However, this can be a relief when the patent owner wins the case because it is the other party that shall have to pay for the legal action charges1. Characteristics of an invention to be awarded a patent The invention (s) must be unique – It should not be related in any way to an existing invention (s). It must have an inventive step – The idea, theory and concepts behind the invention (s) should be original. It should be usable – The invention should be usable or practical in any industry of choice. It is also important to know that, a patent cannot be awarded for the following: Literary works, drama works, musical or artistic works – these works are awarded Copyrights instead of patents. Ways or methods to conduct business. Information presentation. Medical treatment methods. Animals or plant species. Laws of nature and/ or a discovery. Mathematical or scientific theories, concepts and methods. Inventions which reveal offensive material to the public. Computer program (s). Benefits of patent protection Patent protection seeks to benefit the inventor in a number of ways2. These include: The inventor can take legal action in the event that somebody else may try to copy their idea without their authority. The existence of the patent prevents other individuals from trying to copy and idea or two from the inventor’s work. However, the law is very supportive to the inventor because when another individual takes the ideas of somebody else, they are prone to be sued for that. Despite that, the legal action is very expensive and takes a lot of time as it requires professional legal advice. It allows the inventor to sell their invention as well as its intellectual property (IP) rights. It allows the inventor to sell the license to another party; however, the inventor can retain the intellectual property (IP) rights. It allows the inventor to share the ideas of the invention with other parties for the sole purpose of conducting a business around that concept. The patent problem in the UK Despite the benefits that are posed by an individual seeking to undertake patent rights for their invention (s), it is claimed that the system of patent protection in the UK is not fair to the inventor despite the inventor being granted the patent by the Intellectual Property Office in UK. Based on that, here are some possible reasons why this is true: Patent fees are extremely high: In the UK, patent application normally costs GBP £230 - £280. However, if an individual seeks the services of a professional Intellectual Property (IP) representative, the costs may rise since this individual had to be paid for their services. Once the patent has been granted, then a renewal fee must be paid for the invention every year after its fourth year of existence. Again, these costs are prone to change every year. For example, the renewal fee for the fifth year is £70; for the sixth year is £90; for the seventh year is £110; for the twentieth year is £600 etc. Moreover, there are other papers filling costs to be encountered. These include: £30 – application fee for the preliminary examination; £150 – to perform a search of the invention; £100 – to perform substantive examinations of the invention. In the event that the patent is to be done online, the costs to be encountered are slightly different. For example: the application fee for a preliminary examination fee is £20; to perform an online search it costs £130 while a substantive examination service costs £80. Based on those figures, despite the start up costs of the patent being less (minimal) up to the fourth year, it is without doubt that renewal patent costs become very expensive as years proceed with the highest being in the twentieth year with costs raging up to £6003. Moreover, it is worth not forgetting that when an IP representative is involved in the patent granting, the costs may go up to approximately £1,000 - £2,000 in the first year; however, these charges vary depending on the IP representative, miscellaneous fees and tax fees. When the patenting system in the UK is compared to that in the US, it can be revealed that the basic paper filing fees are around $280 while the other additional fees are approximately $210. Moreover, search fees are $120 with additional fees of approximately $90. Examination fees on the other hand cost $460 with additional fees of $345and lastly renewal fees from both nations vary since in the US renewal occurs in the 3.5, 7.5 and 11.5 years4. Based on that, it can be truly revealed that despite the charges of both nations having a tie, still, the system that is used in the UK highly undermines the inventor because the charges of the patent are higher with time. As such, small businesses that have a patented idea cannot aggressively propel it since the costs of running the business are up and those of the patent are also high. If there was a channel that an inventor would be charged “better” fees, then they would comfortably be in a position to conduct business since a majority of businesses take up to five (5) years to become stable and up to ten (10) years to become successful. Therefore, the current patent charges leave inventors with very few options such as: Selling their invention (s) as well as its Intellectual Property (IP) rights to a bigger business. Selling the license to another business and remain with the Intellectual Property (IP) rights. Share the idea with investors and hope that they buy into the idea by offering investments or buying of shares in the small company. As such, this is one of the reasons why the UK system of patenting does not favour the inventor in the least bit. Biasness towards infringers (large companies) who take the ideas of small inventors and make it their own: The UK patent system is claimed to have a number of loopholes and biasness. Large corporations always take the ideas of the inventors and make the idea their own. As such, inventors lack protection from the government. A good example is the case of Denise Anstey. She initially invented a light weight walking “Slik” stick after having a car accident that led to her having mobility problems. Trouble arose when the contracted manufacturing company experienced financial troubles and they went ahead to sell her original idea as a different idea to a different company. As such, she almost lost her IP rights to her invention. With that experience, she realised that the UK patenting system favours large companies but not the inventors themselves. Through that she filed a petition in 2012 to the government about such acts calling onto them (the government) to offer more protection to inventors5. Due to the fact that this is a matter that happens frequently in the UK to inventors, her petition was supported by a number of personalities such as the inventor of the wind-up radio - Trevor Baylis as well as the SME Innovation Alliance (SMEIA) members. The need for this action was to showcase that inventors in the UK have very slim chances of making it through to enjoying their invention (s) and its benefits. At times, it may even become useless to have an invention (s) since the process of fighting for legal justice in the instance that a large corporation picks up the idea as their own is very time consuming, tiresome as well as expensive for the small company or individual to sustain. According to Denise Anstey, “if someone takes your ideas, the balance of favour is with the [infringer]. That needs to be redressed. Legislation must be changed to allow more effective action to be taken and allow justice to prevail”. Trevor Baylis also commented on the protection of inventors rights by stating that, “better protection for inventers will ensure a prosperous future for those currently working to build a career in innovation and those about to step onto the ladder of work by addressing the protection issues we have raised. This campaign is not a criticism of the Government or its policies but an initiative for change”6. It is without doubt that if the Invention body in the UK does not act to this issue; then there shall be a higher decline in inventions in the coming years. As noted by Reynolds Porter Chamberlain (RPC), the invention figures in 2011 were 15,343 as compared to 2002 figures of 20, 196. As such, there was a 24% decrease in the number of inventions in the UK7. As such, this is the second main challenge that inventors in the UK are facing. Legal action and legal representative fees in the UK are extreme: The patent legal action fees in the UK are extremely high and even worse for an individual who do not have the cash to pay for their legal action proceedings as well as the services of the representative. When Denise Anstey took her case to court, she did not have the legal aid to proceed with it. As such, this experience was quite a discomfort to her since in her mind all she thought of was losing her invention idea to somebody who had not even contributed a dime to it. She went ahead to record a statement saying, “if someone dedicates months or years to the invention of a product, what right has another person got to walk in and take that away?”8 Despite her finally winning her petition case, she had to undergo so much toil to make it happen. Moreover, her case shed light to the fact that, even though the Patents County Court system encourages inventors to forward legal petitions at lower costs, the damages that the infringer pays for are far much less than the costs that the inventor had to part away with so as to win the case. Sir James Dyson a British inventor supported this notion by adding that legal fees in the UK may amount to approximately £3M and the individuals who always take up these cases are those who have deeper pockets because they have less to loose and more to gain in the instance that they win the case. For those who are just starting out, they face a lot of hitches since that cash is overwhelmingly high. As such, approximately 82% of inventors always end up losing a court case and their invention is picked up by the larger corporation9. Legal actions take too much time to be completed: Not only do legal actions based on patents consume huge sums of money. They also take too much time to be completed. This is due to the fact that the corresponding judge and attorneys have to gather sufficient information about the case, make comparisons and come up with conclusions about who wins the patent petition and who does not. Due to the reason that a majority of the time these cases always involve an inventor against a large corporation, the large corporation may aim at strategically prolonging the case in court so that the charges can be very high and the inventor will not be in a position to proceed with the case and they bail out. As such, the large corporation would get the patent rights. This is another challenge that is slowly “killing” inventors in the UK. What should and should not be patented: According to the UK Patents Act 1977, “mathematical methods, methods of doing business, computer programs, aesthetic creations and presentations of information” should not be patented10. This is a clause in the UK Patents Act that has affected a number of individuals who have come up with unique software programs and since they cannot be in a position to patent their ideas, they always end up becoming worthless. Moreover, inventions in the field of: graphical user interfaces (GUIs); operating systems; design software’s; information systems are also affected by this Patents Act11. Over the past years, there have been proposals to change the UK Patents Act 1977, but to date nothing yet has been done about it. Some of the proposals of the Act were that the “non technical” inventions such as software programs should also be given the equal right to be patented so as to avoid different software companies coming up with the same product but with a different name and slight alterations to its core functionality. As such, UK inventors are still having a rough time with getting their works patented as compared to other regions such as Belgium, Europe, USA and Australia. There is one particular case that clearly brought this issue out. This was that of Aerotel v Telco and Macrossans Application. Macrossan Neal William. He had come up with a system (software program) whose core function was to aid in the establishment of a “corporate entity”. The system worked through the use of the Internet as the communication channel. The user of the system was asked a set of questions and they were to respond by keying in the information so as to set up the “corporate entity” and the answers were stored in the systems database. The process of asking questions continued until all the sets of questions had been responded to and the “corporate entity” information was termed as satisfactory. After that, the system was to generate a report which was finally sent to the user. When Macrossan Neal William took the case to the High Court in UK, his petition was declined and his work was termed as being “un-patentable” for the following reasons: his work was a “software program” and it was a “method for performing a mental act” all of which under the UK Patents Act was not to be granted a patent rather a Copyright12. Based on the shortcomings of the Aerotel v Telco and Macrossans Application case this trend shall continue to strive; then UK will end up having fewer inventions since there would be no worth in them. In addition, this may end up affecting their economy since fewer and fewer people would want to venture into innovations for sustainability. Renewal fees and lack of renewal consequences: Each patent in the UK attracts a renewal fee after its fourth year. In addition to that, this fee keeps on changing as the years go by. For example, £70 is the renewal fees for the fifth year; £90 is the renewal fee for the sixth year; £110 is the fee for the seventh year and £600 is the fee for the twentieth year of the patent’s existence13. Another challenge that inventors in the UK faced before 1 October 2005 was the fact that the renewal fees had to be paid on the same exact day that the patent was filed. This brought a lot of issues since in other European countries; inventors were allowed to pay their renewal fees on the last day of the month that the patent was filed. Based on that, the UK Patents Act 1977 was amended under the Patent Act amendments on 1 October 2005. As such, inventors were required to pay their renewal fees by the end of the month that the patent was filed in14. In addition to that, the UK Patents Act 1977 also has some very strict consequences regarding the renewal patent fees. First, if an inventor does not get to renew their patent in time, then the IPO issues a reminder letter to the individual stating that they may still pay for the patent up to a month later after the date that the patent was filed. Moreover, the payment shall not attract a charge. The penalty for the patent is enforced when the renewal fees are not paid up to the fifth month after the date that the patent was filed. Based on that, this delay attracts a fine of £24 every month in addition to the renewal fees that are to be paid. In cases where the individual fails to pay the renewal fees after the five months, then the inventor shall have to restore the patent after a period of 13 months. The restoration of the patent requires that a detailed explanation is handed over to the IPO comptroller stating why the renewal fee was delayed for that duration of time. As stated in the UK Patents Act 1977 section 28 (3): “If the Comptroller is satisfied that the failure of the proprietor of the patent- (a) To pay the renewal fee within the prescribed period; or (b) To pay that fee and any prescribed additional fee within the period of six months immediately following the end of that period was unintentional, the Comptroller shall by order restore the patent on payment of any unpaid renewal fee and any prescribed additional fee”15. The UK IPO also mentioned that “unintentional” may also apply to the fact that the inventor was not in a position to pay for the patent fees or did not show any efforts to pay for their fees16. As such, the IPO comptroller shall be in a position to determine if the patent shall be restored or not. In extreme instances, the patent becomes obsolete and the inventor can do nothing about it since the IPO comptroller may term the situation as being intentional – the inventor did not pay the fees willingly or did not put any effort to get the fees amount to pay for their patent. With that, this is the last challenge or rather patent problem that is being faced in the UK. It is without doubt that if the UK legislators were to amend the Patent Act of 1977 to redress these issues, then individuals in the UK would be more forthcoming to innovation rather that employment. As of now, patents have become a “buy now, pay later” kind of business where the fees are extremely low in the first years but after that, they become quite high for the inventor in the consequent years. 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