Action on IP key to driving private sector growth

Urgent action is needed to adapt the UK's Intellectual Property (IP) system to allow companies to compete on a level playing field with those in other parts of the world and to enable them to tap into opportunities in emerging markets, according to a UK firm of patent and trade mark attorneys.

Withers & Rogers warns that UK based businesses are being held back by the lack of protection for business ideas, or for lower value or quick to market products for which the present patent system is either too slow or too expensive to be of value, or is prevented on legal grounds from providing protection. By contrast, businesses in Russia, China, Germany, Australia and Japan can apply for 'utility models', which can be obtained within a matter of months, giving protection for up to 10 years. Nick Wallin, patent attorney at Withers & Rogers said: "At a time when private sector growth is critical to help balance the economy, the traditional UK patent system is failing UK companies in some areas, as it can take a long time for innovations to gain the commercial protection they need, where it is available. This is not through the fault of the UKIPO which administers the existing patent system very well, but by the lack of any form of 'intermediate' IP right such as utility models, that provide weaker protection than traditional patents, but which can be granted much more quickly and at a lower cost than traditional patents." According to Wallin, utility models currently used in other countries are particularly useful for inventions that are likely to have a shorter life span and therefore do not necessarily require the 20year protection provided by a patent. They are similar to a full patent and can provide similar enforcement rights - the main difference being that they are granted without examination and validity is only checked at the point of enforcement by the courts. They typically have a lower requirement in terms of inventive step too, which means some inventions may be successful in achieving utility model protection despite not meeting the criteria for full patent protection. According to patent specialists at Withers & Rogers, utility models should be considered more seriously. Nick Wallin added: "In the fast paced world of consumer electronics and mobile phones, for example, inventions are often superseded within just a few years and the 10year protection provided by a utility model patent is more than adequate. Similarly, innovators in trend driven industries like homewares, packaging and vehicle accessories would be prepared to sacrifice the longer term protection provided by full patents in exchange for quicker, cheaper protection for their developments. "In addition, improved or enhanced products may be more likely to succeed in obtaining utility model protection, potentially opening the door to lucrative overseas markets." Wallin warned that the length of time it takes for companies to obtain the IP required to turn their ideas into a commercial reality is impeding UK competitiveness. "It would also be possible, if utility models were to be introduced, to allow them to cover innovations from which the traditional patent system is presently prevented, such as innovative business models," said Wallin. "Whilst there would need to be checks and balances to ensure such rights were not abused, this could be in the form of weaker enforcement rights. For example, it may be that a utility model holder for a new business method should not be able to stop other people using the method, but would be entitled to royalties for any such use. At the moment, with the present traditional patent system, the inventor of a new business method would not be able to obtain any relief." Wallin notes that existing utility model systems vary slightly from country to country. In Germany it is possible for innovators to apply for a utility model patent and a full patent at the same time – they are not mutually exclusive. This is regarded as particularly useful because some degree of patent protection can be secured quickly, without affecting the progress of a full patent application. In China it is also possible to file for both forms of patent protection simultaneously, but it requires careful planning. "Utility model protection is not a panacea for all industry sectors - development cycles for products in the aerospace, automotive and life sciences sectors benefit from the longer 20 year term afforded by full patents but the current patent system is insufficiently nimble to satisfy the commercial needs of many of the UK's most innovative sectors," Wallin concluded.