Patently wrong?: Trevor Baylis looks to criminalise Patent Infringement

One of the country’s best-known inventors is lobbying the Government for a fundamental and sweeping change to UK Patent Law which would make copying an existing invention a criminal offence.

Dr. Trevor Baylis OBE first shot to fame as the inventor of the “wind-up radio” in the early ‘90s and has become a leading advocate for Inventors’ rights, winning numerous awards and becoming a media personality in his own right, going on to found Trevor Baylis Brands PLC in 2003 as a means to help inventors protect their investment, exploit their intellectual property and find routes to market for the next generation of innovators.

Along with James Dyson, Dr. Baylis is one of the highest-profile inventors in the UK. This morning, the BBC reported that Dr. Baylis has written to Lord Mandelson, the Business Secretary, to urge him to “criminalise the theft of intellectual property”, going on to note that:”if I was to nick your car….I could go to jail; but if I were to nick your patent, which is worth a million pounds, you’d have to sue me.”

Currently, there is no criminal penalty for Patent Infringement, although there are already such measures in place for the infringement of copyright and trade marks. Dr. Baylis’ comments have already led to a fierce debate over the issue, with much of the negative commentary coming from Lawyers.

Dr. Baylis is one of the few inventors who have actually been able to make a living and, in the case of James Dyson, a fortune out of an invention. Getting an idea to market is becoming increasingly expensive and obtaining a Patent is in itself a time-consuming and very expensive process, so it’s easy to fall on the Inventors’ side of the fence and to argue that criminal sanctions should be put in place to protect their ideas and the “knowledge economy” which the Government has made a central part of its financial plans for the foreseeable future.

However, like many of these issues, it’s just not that straightforward.

A Patent is only granted for “methods and processes” which make innovations work. To obtain one, the Patent Act provides that an invention must be new (in that it’s not already in the public domain), have an “inventive step” which means that it isn’t obvious to a third party who is knowledgeable in the field in question, be capable of use in industry and not fall within one of the “excluded categories”, which include scientific discoveries, methods of medical treatment and any other invention which is “against public policy or morality”.

Dr. Baylis’ argument would probably be that it’s also against public policy and morality to allow infringers to get away with ripping off existing inventions. He’s right, and the law agrees with him. A Patent, once granted, allows its inventor to sell an invention or licence it out to third parties in the UK without fear of it being reverse-engineered, and creates a monopoly for a Patent Owner to exploit the Invention however they see fit for 20 years, provided that annual renewal fees are paid.

Although the filing fee for a UK Patent is only around £200, there’s no guarantee that the application will eventually be granted as it will be rigorously examined by the Patents Office and the chances are that a lot of work will have to be done by professional advisers to get the application through. This, the issue of whether or not the process or product will actually be commercially-successful and the fact that a UK patent only covers the UK with separate Patents will be needed for other countries (many of which will have different legal systems) is where costs start to seriously mount up and many inventions fall by the wayside, hence many inventors walking into “Dragon’s Den” having spent huge sums of money on patent costs or pitching for a substantial amount of investment to get the Patent granted.

It’s easy to think that the Government makes it difficult to obtain a Patent and that the whole system is just too costly. Sometimes, this may be true, but this should be balanced against what you actually obtain upon the grant of a Patent – a registered monopoly to make money out of your invention for 20 years. This will have the effect of stopping products which are too similar coming to market and therefore stopping third parties from competing with you. The Government takes granting this kind of right very seriously and is keen not to hand out protection to products or processes that are too similar to what’s on the market already, hence the examination system.

Patents are usually the most secure and straightforward way of protecting your investment in an invention. However, the price of freedom to make profits from a Patent is eternal vigilance. Patents are infringed when third parties manufacture, use, sell or import a patented product or process without the owner’s permission. We don’t have a criminal offence like Dr. Baylis has requested in English Law, but we do have a tried and tested civil system which allows Patent Owners to sue for infringement and to be able to recover their costs in doing so, damages or an account of profits made by the infringing product and an injunction to stop further infringement. This is balanced out again by the “threats” provisions, which ensures that Patent owners who threaten an action against a third party without cause to do so can in fact be sued by anyone who incurs damages as a result.

The system is complicated and it is very expensive to launch and/or defend a Patent Infringement Claim, mainly due to the fact that you’ll need expert technical advice from the word go and that IP cases are amongst the most expensive actions in UK civil law, especially if you’re looking for an injunction to restrain infringement. Not only that, but a common defence to a Patent Infringement claim is that the Patent should not have been granted, meaning that if you lose the case, you may well lose your monopoly and all the investment which you’ve made to protect your innovation.

To put a criminal system in place may seem like a straightforward way of cracking down on IP crime, but the fact is that, although criminal copyright infringement cases are all over the headlines at the moment, the criminal system isn’t designed to deal with Patents.

The question of whether the Patent is actually infringed is a very complex process, and unless Patent Agents start moving in droves to the Crown Prosecution Service, then the expertise simply isn’t there to decide if, beyond a reasonable doubt, there is a criminal case against an infringer.

The other major argument against the criminal alternative is the issue of the monopoly which Patents grant. Theoretically, a Patent Owner can (although most often doesn’t) make a huge amount of money from their innovation, and this being the case, the Government expects them to crack down on infringers themselves, rather than expecting it to be done for them. Civil cases are very costly, and the entire civil court system is now being reviewed to see if litigation costs can be justified at current levels, but there are a number of checks and balances available to Patent Owners, which include an opinion from the Patent Office on whether or not your Patent has been infringed. Whilst this isn’t binding in the same way that a Court Order would be, it is comparatively cheap to obtain and can be used as a powerful commercial lever to force a settlement with an infringer.

The old chestnut that “if it’s worth copying, it’s worth protecting” is more true here than perhaps any other area of IP law. Patent Agents are already arguing that the threat of a criminal prosecution may deter further innovation and they have a point. Many new products may never reach the market for fear of coming too near to an existing Patent, which could seriously inhibit innovation and run completely against the whole point of the system.

The real challenge is looking at how to make Patent Infringement claims cheaper. A number of insurers now provide policies to protect Intellectual Property rights and the costs of any action to enforce them, and the best way to deal with a future problem is to plan for how you’re going to deal with it when you first look seriously at making any kind of money or getting any kind of protection for your invention. The sad fact is, though, that may inventors simply can’t afford to use the Courts to help them and this will have to change at some point, whether it’s via IP Lawyers entering into “no win, no fee” agreements (which is unlikely, as it’s notoriously difficult to predict the chances of success in a patent claim) or more action from the Government through the Intellectual Property Office to try and deal with potential disputes proactively.

In short, there’s no easy answer. Musicians can take quicker action than Patent owners as there’s no registration system for Copyright and they normally have to work harder to prove that their IP rights actually do belong to them. Many businesses could be infringing upon a Patent with no idea that they are doing so, which is not the case for the CD or DVD copiers in the parallel drawn by. Dr. Baylis. Patents, like many areas of Intellectual Property law, involve a series of trade-offs in exchange for a higher level of protection. For now, that will also unfortunately involve higher legal fees.

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