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In our previous newsletter I outlined some of the changes and potential issues that businesses need to consider in light of the EU’s passing of Article 13. For a catch up please read here.
Picking up from where we left off, I’d like to explain why you should still apply for a patent even though you can’t afford the (allegedly) multi-million cost of enforcement that you may have heard about in the news? Well, first and foremost, the opportunity to apply is a one-off. You don’t get a second chance to change your mind. If you decide not to file, press on and start selling the product, and then have second thoughts, then it’s too late because the idea is no longer new thanks to your own disclosures. So when you file, you’re saying (in effect) that you think there’s a reasonable chance that the invention will be successful enough that you’ll be able to afford patent enforcement sometime in the next 20 years before the patent expires. If you don’t think that’s likely, why are you pressing on at all?
Second, you might never need to enforce the patent. We act for people on both sides of the fence, and regularly see people change their business plan when they find a patent in their way. They’ll either decide not to compete in that market (yet), or approach the patentee and offer to pay for a licence. If they back out, the patentee may never know that the patent had done its job.
Finally, enforcement is not as expensive as you might think. Only the really contentious issues tend to get to Court, the issues where there is an interesting point that needs to be argued out and decided on. Inevitably, they are the more complex and expensive cases. Many others settle earlier and therefore more cheaply. It was only last week that we sent out a warning letter in a case of potential trade mark infringement, and the case was sufficiently clear-cut that the other party withdrew immediately – literally, by return of email. In the case a patentee who genuinely can’t afford enforcement they would be well advised to settle on a licence arrangement so that royalties are coming in rather than legal fees going out. Then for the cases that aren’t a blockbuster pharmaceutical, but still need the Court, there is an “Intellectual Property Enterprise Court” (https://www.gov.uk/courts-tribunals/intellectual-property-enterprise-court) that can hear these matters and has a specially-designed set of rules to keep costs down and limit the costs that can be sought against the losing party – so if it goes wrong, your liability is limited.
So, the take-home messages for today are:
Get your memes out of your system quickly, their end may be in sight
Beware legislatures that don’t understand the practicalities of the fields they are legislating in
For further reading, you might like to read our blog article which covers some FAQs that business or website owners may have about Article 13.
Best Wishes
Michael Downing
