Patents are one of the most well-known types of intellectual property (IP). However, what can be patented is often less understood by new entrepreneurs and innovators. The disruption caused by COVID-19 has introduced new challenges and pressures for businesses, especially start-ups and small/medium-sized enterprises. This is affecting how these businesses can, and should, approach patenting their innovations.

What’s stayed the same?

1. Patents are used to protect inventions

This includes new products, product manufacturing methods/processes, and methods for controlling a process or analysing data.  A new logo, product or company name is not patentable, as it is not an invention. Instead, these are protected by trade mark.

2. Inventions must be new

Patents are a type of registered right. An invention must be new; this is assessed with respect to everything that is already in the public domain, in any format, in any language, in any country, at the time a patent is sought.

3. Secrecy is important

Publicly disclosing the invention in any way, such as via a press release, an academic paper, a conference or trade show presentation, or even just talking about your idea casually, may mean a patent cannot be obtained.

4. Patent holders can stop competitors from making or selling their invention

Patents do not confer a right to start making or selling a new product, or to use a new method. Rather, a patent holder has the right to stop another company exploiting his or her invention without permission.

What’s changing?

Pre-COVID and post-COVID, the reasons for patenting an invention are largely the same:

• Secure market position and financial return on commercially successful innovations, by preventing third parties from using their patented inventions
• Obtain greater negotiating power when collaborating with other companies
• Attract investment partners and support business expansion, as they demonstrate that a company has a high level of technical expertise

As we begin to experience the effects of COVID-related disruption, start-ups/SMEs in particular may need to make difficult decisions. With limited resources and many challenges, what should a start-up/SME prioritise now?

5. Delay the patent process

This can buy valuable time, to allow manufacturing to re-start, funding channels to open up once more, or lab-based development to begin again.

6. Keep ideas secret

If a start-up/SME has not started the patent process yet, the most cost-effective way to protect their inventions during this time may be to simply keep their inventions secret. As long as the inventions are kept secret, a patent application can be filed for the inventions at a later date.

7. Do IP-related admin

During lockdown on the movement of people, inventors may have more time for IP-related admin, which is often overlooked in busier times.  For example:

• Develop processes for invention capture and protection
• Brainstorm around existing inventions to identify work-arounds or other ways their inventions could be implemented
• Writing-up existing ideas using invention disclosure forms
• Identify competitors or potential partners including R&D or commercialisation partners, potential licensees or potential problems
• Identify primary and secondary markets both now in and future

Please note that the above information is not intended to be comprehensive and should be discussed with a qualified patent attorney.