Smart patenting of ICTs: make your IP unprofitable for infringers

 

Written by guest blogger Michael Baron

To patent or not to patent is indeed the question to consider.

Many IT and Telecommunications companies (especially smaller ones) might question the feasibility of obtaining patents for technologies they develop and I believe they usually give two reasons for doing so:

  1. they feel it’s a waste of time and money and that patenting is not going to protect their intellectual property (IP) effectively
  2. by publicising their patents they provide competitors with useful hints on how to replicate the technologies.

A requirement of the patenting system is that for the monopoly (patent) of an invention to be granted, the applicant is required to fully disclose it so that the merits of the application can be properly assessed by the patent office. So, once the idea or concept becomes well-known, smart copycats can reproduce the resulting products (such as apps) or production technologies (such as web-development methodologies) without much difficulty or even utilise the same concept or idea to make an even better product or deliver an even better service.

However, in my opinion – the answer to the dilemma of patenting/not patenting of ICTs (Information & Communication Technologies) is YES!

Not only does publishing of inventions share new knowledge with the public, it helps fuel more innovation. The counterargument of the ease of stealing the ICTs is certainly valid but as we know, ‘criminal minds’ require motivation for breaching legal and ethical standards. They do so because they believe they can profit from undertaking those unethical or even illegal activities. For example, by stealing an algorithm that is central to development of software applications, one can avoid paying license fees for using software that is already readily available in the marketplace or fees for the right to use the algorithm for further developments. So rather than worry about others stealing our ICTs – I suggest we approach the issue from another angle and ask ourselves: ’How to make stealing our IP unprofitable and therefore unwise?’

Once a company establishes its need to acquire a particular ICT it has two options: ‘to steal’ or to buy.

The paradox lies in the fact that ’stealing’ may turn out to be far more expensive and risky than buying! Stealing of an ICT would involve a number of stages: understanding the ITC operational/design principles, producing a workable version of your own and last but not least carrying out the testing procedures to ensure that the ‘stolen’ technology does work! In many cases, this process will prove to be time-consuming and difficult to manage. By the time we succeed in reproducing the ICT it may already become out-dated and require further updates and alterations.

On the other hand, buying a right to use a patent from its legitimate holder can resolve the problems outlined above amicably. Not only the buyer will feel good about conducting his business activities in a lawful and ethical manner but he will also have the benefit of acquiring ongoing assistance and support with the ICT. Thus, the potential competitor/copyright culprit could be turned into a business partner!

So in a nutshell, do patent your technologies!

Furthermore, do promote your patents as much as possible via both business networks and social media and rather than keep all of the supporting documentation secret and unavailable, share some of it as a ’taster’ with interested parties along with the information on how rights to the technology could be purchased and details of supporting documents and services you are going to provide. If only your patent is going to be priced reasonably, it will then be far more likely to be purchased rather than stolen!

Disclaimer: Guest blog content is provided to encourage positive conversation around a broad range of intellectual property topics. The views expressed do not necessarily reflect the views and policies of IP Australia. We accept no responsibility for the accuracy or completeness of the views or information posted and we disclaim all liability from those views that may be occasioned directly or indirectly through the use of, or reliance, on those views and information.

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Published: 
25 August 2017