938 041 535

26th May 2017

Most of our start-up and SME clients ask us this question. Typically it is thought that a patent is only used to enforce against a competitor that copies their technology. But this is not a good reason to patent if you are a small company without the resources to challenge a competitor in court.

Why should I patent my innovation?

According to an expert patent lawyer in Silicon Valley, there are three reasons to patent your innovation:

  1. To increase valuation. Investors and acquirers expect tech companies to have patents and they will pay a premium for it.
  2. To increase leverage over a strategic partner. If you file a patent before signing a partnership agreement, you will be able to command maximum profit share (or ownership) of the new joint venture because you can prove that the core technology is yours.
  3. To deter an infringement lawsuit against your company. With the huge amount of technology out there nowadays, there is a good chance that part of your product infringes on an existing patent. So, say a competitor holds a patent that your technology infringes on. It is unlikely that they will enforce it against you if you hold a patent protecting a related technology because their product is probably already infringing on your patent. Or they plan to infringe with a future product release.  

But I’ve heard that you can’t patent software in Europe.

Actually, yes you can. But it’s a bit tricky. According to the European Patent Office, “a computer program claimed “as such” is not a patentable invention (Article 52(2)(c) and (3) EPC). Patents are not granted merely for program listings. Program listings as such are protected by copyright. For a patent to be granted for a computer-implemented invention, a technical problem has to be solved in a novel and non-obvious manner.”

To get a better understanding of patenting software in Europe, a good place to start is the blog of Bastian Best, a European Patent Attorney, who offers easy to understand examples and short videos that break down common misconceptions related to software patents.

So how can I get started?

The first step is to choose a patent lawyer. Here are a few things to keep in mind to help you find the right one:

  1. Writing a good patent is difficult. It should protect your innovation, whilst also protecting a wide range of variations of your innovation in order to prevent your competitors from working around it. Writing patents is highly technical and takes many years to perfect. Ask them how many patent applications they have written. Experienced patent lawyers have written 100 or more applications.
  2. Make sure they have a technical background that is relevant to your innovation. When you explain your innovation to them, they should be able to come back and describe it to you, pointing out what is interesting and patentable.
  3. If you are a startup, check to see if they understand the funding cycles of a startup. Patenting in multiple countries is expensive so it is important to design a Patent strategy that is aligned with funding availability and predicted cash-flow of the company.