IPO still in denial about inventor and SME patent enforcement

 

The IPO (formerly the Patent Office) has just published the conclusions from its discussions with businesses following an earlier IPO publication From ideas to growth: Helping SMEs get value from their intellectual property.

Those conclusions need not detain us long, as they merely confirm what has been obvious since the 2011 Hargreaves Review: that when it comes to the problems SMEs have with patents in particular, IPO is not going to be shifted from its present position of measured complacency.

It claims to work from the premise thatsmaller businesses [tend] to be ill-informed about managing their IP assets and confused about when to seek help and from whom’. In other words, give SMEs a big dose of clear and accurate information and everything in the IP garden will be rosy.

In truth, quality of information about IP is a side issue. Far more important are two key factors almost entirely absent from the ‘conclusions’.

1   When it comes to SMEs enforcing their IP rights – particularly their patents – it’s all about money. A patent is to all practical purposes worthless if you can’t afford the huge legal cost of enforcing it against an infringer. But all we get here from IPO is: ‘For a small business, the time and energy taken to pursue an IP dispute represents an important opportunity cost when those involved might otherwise engage in other business development activity.

‘Opportunity cost’ doesn’t even come close to describing the loss facing SMEs who try to enforce their patents. It ignores totally the huge legal costs, the personal stress, the disruption to normal life and business, the dirty tricks, the feeling of helplessness when confronted by a (usually) large, rich and ruthless opponent. It also ignores the fact that UK SMEs are further handicapped because its own government – unlike many others – is unwilling to treat IP theft as a crime.

2   There is no acknowledgement that the IP system should work for everyone. That includes individual inventors, who rarely have lavish resources. When it comes to patenting an invention, private inventors are caught between the devil and the deep blue sea. If you don’t patent your invention, you leave yourself wide open to infringement and may be unable to attract investors. If you do patent, it may cost you a lot of money and you’re still wide open to infringement if you can’t afford to spend even more money on litigation.

There is no sign that IPO either recognises or cares about all this. Among the 60 businesses and organisations that took part in its discussions, were there any lone inventors? We very much doubt it. And yet IPO can piously spout: ‘The UK’s ability to compete in a global economy increasingly driven by innovation is key to our prosperity. To maintain our competitive position we need a continuous flow of individuals [our emphasis] – entrepreneurs, inventors, creators, employees – with the technical and business skills needed to develop new ideas and bring them to market successfully.

But the context here is education. That makes it safe to talk about encouraging individuals. It’s a lot easier to say ‘Let’s educate individual inventors in IP’ than ‘Let’s take practical steps to help inventors, and their start-up businesses, defend their IP’.

If IPO’s encouragement of inventive individuals is to stop at education, we’re simply creating a supply of future victims for a patent system that is increasingly unfit for purpose. And because of its unremedied weaknesses, that system will continue to give big companies carte blanche to steal the IP of smaller companies and inventors.

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