Review of BS 8538

Today the Hargreaves IP review is published, so decks are being cleared for a review of the review. First though, a quick return to BS 8538, the new British Standard designed to curb the excesses of invention promotion companies who rip off unwary inventors.

(Speaking of rip-offs, some might consider the cost of BS 8538 – £130 ‘full price’ or £123.50 ‘discount price’ for a mere 24 pages – to be a little steep.)

I’ve previously set out my misgivings about BS 8538, believing that it might easily make matters worse for inventors rather than better. I’m now better informed, but of no significantly different opinion, thanks to an excellent review of  BS 8538 by Barbara Cookson of Filemot Technology Law Ltd, an IP services provider and respected blogger.

What emerges is that the Standard doesn’t apply to qualified IP professionals (patent and trade mark attorneys) but mainly to the relatively small number of companies who offer invention evaluation, prototyping and commercialisation services. According to Barbara:

It seems to me that [BS 8538] imposes an obligation to tell an inventor when his hopes are overblown.

And that’s the nub of it. A long-standing problem with invention promotion companies is that they routinely exaggerate the prospects of an invention in order to get the work. Or, to the same end, they neglect to disclose to the inventor evidence of poor prospects.

It seems unlikely that BS 8538 will in the long run do much to stop dodgy practices. First, few inventors will know what’s in the Standard (that price!). Second, there is effectively no enforcement. As Barbara neatly puts it:

The idea of the Standard is to provide reassurance to inventors. However, its confidential nature could be said to limit that benefit quite considerably. There is no enforcement provision. Service providers just buy the Standard and assert their compliance in order to reassure potential clients that they are good eggs.

In other words, I can say that’s services are BS 8538 compliant (which I do) and it might be extremely difficult for an inventor to (a) prove that they’re not or (b) do anything about it even if they are.

A third factor – expanding on Barbara’s point about the obligation to ‘tell an inventor when his hopes are overblown’ – is the subjectiveness involved when an invention has marginal prospects. Many inventions are ‘so what?’ ideas (term explained in A Better Mousetrap) whose fate may hang on how well they’re marketed rather than on the quality of the idea itself. This is something we often have to explain to inventors, which is why it’s so important that the inventor has evidence as well as opinion to chew over. One invention promotion company might justifiably see the glass half full, while another might equally justifiably see it half empty and recommend dropping the idea. Which would be right, and how would the inventor find out? We don’t remotely want to be apologists for the less principled invention promotion companies but it’s a tricky area in which BS 8538 might be of very limited use.

Overall, we still believe it will make little practical difference to inventors whether or not an organisation claims BS 8538 compliance. They could still end up being unhappy about the service provided, or its outcome.



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