Why are the Irish reluctant to file Patents?

I worked with a cabinet maker a long time ago and he taught me a few things. He taught me that when working with wood the final painting or varnishing accounted for less than 5% of the quality of the finish and that the preparation, sanding and priming were worth 95% of the quality of the finish. He also taught me that central to the preparation of any wood was the choice of the correct tools.

Nowadays I work in a very different industry but I have never forgotten the lessons taught to me. The preparation and filing of a good patent, the drafting of a license agreement, the registration of Trade Marks is all about the preparation and very little to do with the final format. This I suspect applies to many different jobs and it is for that reason that I am constantly amazed by how little effort Irish businesses, in general, put into the preparation and execution of their business strategy.

Recently I attended a business incubation centre for a showcase event. One of the companies I met there were displaying what appears to me to be a very clever tool that would enable both home and business owners effect significant energy savings. I will not disclose anything about the device for obvious reasons but it is an electronic device using embedded software. The company have already signed a significant beta testing deal and looks set for commercial success.

From my point of view though there is a fly in the ointment. When asked if they had filed patents to protect their developments I was told they had not as “there was no point”. When pushed on this I was told that they “couldn’t afford the €50,000 a year required to file patents”, and that “the technology uses software and sure that isn’t patentable”. Finally delivering the final blow I was told that “there is no point in filing patents if you can’t defend them”.

The first two points I have heard on many occasions and they are generally very easy to rebuke. Firstly filing patents does not cost €50,000 a year for the vast majority of Irish businesses. I guess we have something in the region of 5000 patents belonging to Irish businesses in our care and I estimate that they average cost per year is approximately €3,000 (spreading filing and nationalising along with renewal fees over 20 years). I’m not saying that patenting is cheap but when it is the appropriate strategy it can be a relatively minor expense.

Secondly, software per se, as a language, a series of 1’s and 0’s is not patentable. That is not the same though as an invention that software enables not being patentable. Where there is a technical effect that could not otherwise be performed then there is usually patentable matter. Clearly the example given above falls into this category.

The third point though is the one I find hardest to persuade people about. A patent filing is by its very nature a barrier to entry for competitors. Patents do not get published for 18 months after they have been filed and therefore companies can effectively have a monopoly for this time period with competitors reluctant to copy. Consequently a patent filed merely as a ‘bluff’ can give someone a serious competitive advantage.

So the point I always try to make to businesses is have you engaged with someone that actually knows what they are talking about or are you relying on your local sage as they lecture from the high stool? Quite often initial advice is provided free of charge so isn’t it time to engage with the real experts?