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Blog | No guts, no glory: patenting takes guts | EP&C

No guts, no glory: patenting takes gutsEmbarking on a new adventure is not for the faint hearted. The same applies when you come up with a solution for a new problem that suddenly comes up. You put your heart and soul into the invention and invest a great deal of time, money and energy in it. And all this with the risk that a competitor may come up with the same idea at almost the same time and may also try to patent it. If this competitor manages to do so just one day before you, then you might not even be able to sell or use your own invention. Imagine the disappointment and the investment lost. I nevertheless recommend that you go for it full steam ahead if you have come up with a great idea with lots of potential. No guts, no glory!

When the time is right

Sometimes the time is just right for a specific invention. Just think of all those new challenges that Covid-19 suddenly threw at us, such as staff shortages? Or the greatly increased need for energy conservation and alternative sources of energy as a result of war, massively increased gas prices and the threat of boycotts. If lots of people are suddenly confronted with the same problem, it is safe to assume that several creative people will all be working on a solution at the same time.

But therein also lies the risk: you are not the only one who is aware of these problems. So someone else could come up with the same idea and - just like you - have a patent application drawn up and filed.

Everyone is in the same boat

In patent law, patent applications remain secret for a period of 18 months. So you only find out after 18 months whether you were actually the very first to apply for a patent for a particular invention. This means that there is a great deal of uncertainty. After 9 months you will receive a first official novelty report from, for example, the European Patent Office, but the examiner in question may not make any reference in this report to patent applications that have recently been filed by competitors that are still in the secret phase at that point. What do you do? Go for it, or wait? Invest, but without certainty?

And in the meantime your competitor will be in the same boat. Regardless of whether you are a horticulturalist who walks through his greenhouse and comes up with a smart solution to consume less energy, or you are a specialist greenhouse builder or lighting specialist with your own R&D department who has come up with the same idea. Both of you will only find out after 18 months whether you are the only one and the very first one. The starting point is the same. And it is not even a question of who came up with the idea first, but of who filed the patent application first.

Perhaps I am not always objective as a patent attorney. By definition, I jump out of my seat when I hear about a wonderful new invention. My advice is nevertheless to go for it. Take a risk if you can afford to do so. Society is eagerly awaiting your invention. And chances are, at least at the detail level, that there will continue to be all kinds of differences between your invention and the invention of a possible competitor. If you do nothing, you are not going to get exclusive patent rights anyway. And if you wait the problem will only be delayed.

Deferring costs

Is it not possible to do this in a less risky way? It most certainly is! At least in my field of intellectual property there is a protection strategy aimed at minimising costs. This is a route whereby you apply for potentially worldwide protection for a limited amount of money in the first year, so that you can delay the choice of countries until after this period. This 1-year period can then be extended by an additional 18 months for almost all countries. This gives you a total of 2.5 years to decide what you want to do. It will also take you way beyond the time when patent applications filed by competitors that were initially secret have been published. This means that you can then include them in your further decision-making process.

In the next blog, I will be explaining this route in more detail with the aid of an example. So start thinking about smart automation for your harvest, conserving energy in your greenhouse and alternative sources of energy. I am curious to see whether you will be able to make me jump out of my seat.