Disruption is built on innovation and invention. By patenting a particular new process or invention, businesses can protect their exclusive access to it. However, to do that, they have to disclose exactly what their innovation is, and how it works.
This tradeoff allows people and businesses to protect their competitive advantage against others seeking to take advantage of their intellectual property. The public, on the other hand, gets access to potentially valuable information, which could help drive technological progress in any number of other areas.
The benefits of holding patents
Holding patents for your inventions comes with a few very important benefits. Every country’s patent laws work a bit differently, but most will grant you exclusive rights to commercialise or manufacture your invention for up to 20 years. That means you can prevent other businesses from manufacturing, using, or selling your invention without your consent.
This is particularly important if your innovation can be easily reverse engineered, or if competitors are likely to make similar innovations on their own in the near future. If a competitor might have caught up within a few months or years, you’ll still be able to preserve any competitive edge that your invention grants for up to two decades. The security offered by this arrangement has made patents an enormously popular way to protect proprietary knowledge, but it does come with a few downsides that shouldn’t be ignored.
Patents require disclosure
In order to file for a patent, you’ll obviously need to describe exactly what it is and how it works to prove that you’ve invented something that qualifies for a patent in the first place. Patent applications and patents are public record, meaning that anyone can access and read them. This is a big deal, because it means that competitors can easily access and analyse your work. While they obviously won’t be able to use your patent, they might learn other information that they can use that isn’t eligible to be patented.
For example, Australia doesn’t grant patents for mathematical models, plans, schemes, or other “mental processes”. A patent that relies on such a process that was previously undisclosed can protect an invention, but may have to incidentally disclose this previously unknown unpatentable process. A competitor could feasibly then borrow and apply that process for their own efforts.
Patents don’t apply everywhere
Since patents are inherently legal restrictions, they can only provide protection where the relevant legal system has power. A patent issued in one country isn’t valid in another. There are a variety of treaties that allow you to apply for patents in multiple countries simultaneously, though that certainly still won’t cover all possible competitors.
Businesses that have to compete in the global marketplace might not be able to secure patent protection for some of their most important markets. This could leave them vulnerable to competitors who can appropriate and use the business’ own inventions to potentially challenge and drive them out of that local market.
Not everything can be patented
Beside the aforementioned mental processes, a variety of other innovations can’t be patented. Most importantly, a new invention needs to be considered sufficiently novel to merit a patent. If the patent doesn’t contain a real “inventive step”, it won’t qualify. Further, patents are meant for economic use, and need to have a verifiable practical application. This is to ensure that businesses and individuals can’t simply try to patent every possible idea or process in hopes that it’ll become relevant to some industry at some point in the future.
Naturally, you also can’t patent any invention that you aren’t the inventor of, even if it has not been patented in your country. While a patent issued in Albania won’t be valid in Australia, the Australian government won’t grant a patent for the same invention to anyone else who tries to apply for it. Instead, the information would essentially become public.
In conclusion: think before your patent
Patents are an extremely valuable tool for protecting your intellectual property in a competitive marketplace. However, it’s also important to think about whether the information released by your patent application is more valuable than the patent itself. Innovations and processes that might not be covered under the patent, or that aren’t eligible to be patented in the first place, can still prove valuable to competitors.
In some cases, then, you might be better served by attempting to protect intellectual property through other means, such as by treating it as a trade secret and taking steps to prevent the public disclosure. By not applying for a patent, you can maintain your competitive edge for as long as you can maintain secrecy, potentially much longer than 20 years.
So, what’s the right choice for you and your business? There’s no one right answer. Every innovation is unique, and you’ll need to make a determination based on your own industry environment and the particulars of your invention.
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