When you apply to IPO for a patent for your invention and they grant a patent, you assume that you now own unique IP that will help you commercialise the invention. After all, IPO is the only UK authority that can say whether the inventive step(s) in your invention merit a patent. And on the understanding that they know their onions, you pay IPO renewal fees over several years to keep your patent in force and your invention in play.
But does IPO always get it right? How many inventors are paying renewal fees for patents that should never have been granted?
We ask because we’re troubled by the story of one UK inventor’s patent. We wonder if it’s an isolated case, or the tip of a possible patent mis-selling iceberg.
The inventor – who, for reasons we must respect, can’t be identified – filed with IPO over ten years ago and is paying renewal fees. We were asked to give an opinion about alleged patent infringement. The invention could only exist as a large structure, and one such had been spotted in a city centre.
Invention never stood a chance
As soon as we looked into the patent and the invention, it became clear that a patent should never have been granted.
First, IPO’s own search report damned it utterly. It cited several prior patents, from the 1950s onwards, for exactly the same invention. (Essentially a simple and arguably obvious concept that our inventor had described in only a rudimentary way.)
Second, we found that the alleged infringer was a large European company that had been making and selling the invention internationally since the 1970s. It owned several relevant patents that not only predated our inventor’s application but exposed it as embarrassingly naive. IPO seemed to have missed completely all this evidence of prior products.
So in sum, our inventor never stood a chance of working the patent. It always was and always would be worthless as IP. Any attempt to litigate for infringement would have been futile.
IPO’s duty of care
And yet by granting the patent and accepting renewal payments, IPO enouraged our inventor to believe otherwise. In plain terms, we think IPO misled our inventor and took renewal fees under what amounts to false pretences.
For our inventor, that’s where the matter may rest. There ought to be a case for repayment of the renewal fees, but only if the inventor initiates it, and we doubt that will happen.
But how many similar cases are there of inventors and businesses paying to renew patents that should never have been granted? And how many businesses are licensees of patents that should never have been granted? It may be impossible to know, because unless there is a need to invoke the patent it’s a case of ignorance being bliss.
We accept that patent examiners are human and can make mistakes. Maybe that’s all this is. But IPO must generate income from fees, which makes it both gamekeeper and poacher. The suspicion has to arise that as long as patentees keep stumping up the renewal fees, IPO will not look too closely at the quality of the patents being renewed.
This matters because IPO surely has a duty of care to users of its services. Inventors and small companies filing a perhaps once in a lifetime patent application are paying IPO to get it right and not sell them a pig in a poke.
Brand and reputation at risk
IPO is a trusted brand – for the time being. When explaining what we’d found to our inventor, we met resistance to the notion that IPO could be in the wrong. They’re the UK government; surely they wouldn’t grant a patent if they didn’t think the invention was worth something? So deep-rooted is this belief that the hopelessness of the situation may still not have sunk home, despite all the evidence we trotted out.
That’s how strong the IPO brand is – strong enough to sucker some inventors and small companies into thinking they’ve got a patent when, in effect, they haven’t.
Brand reputations rise and fall. IPO is already in declining odour for its failure to tackle a major problem for inventors and SMEs – the near impossibility of enforcing their patents in the face of blatant IP theft by bigger companies. If IPO doesn’t do more to get its act together, not only will the UK’s ability to profit from innovation be crippled, but IPO’s own days as a useful and respected organisation may be numbered.