So you've invented the next big thing. It is going to make you lots of money. You apply for and are granted a Patent. You start marketing the product. You head onto Dragon's Den and successfully pitch your idea (well, maybe). Sales are going well. Business is booming. Then someone infringes your Patent. What do you do? The intitial and immediate answer is sue the party infringing your patent to stop them. Correct?
The Law Society Gazette (105/16 24 April 2008 - page 6) recently reported on what were described as "staggering" costs of a magic circle City firm of solicitors in recent patent litigation trying to "knock out" their opponent's patent.
The reported costs were said to be £5.2 million. Their opponents costs were reported to be a fifth of that. According to the article, the judge heavily criticised the costs, and the opponent's solicitors expressed concerns that such costs could deter clients from entering into patent litigation.
The point of the above is twofold, although I would note that this is perhaps an extreme example!
Firstly, the granting of a Patent isn't necessarily the great protection that some may think that it is. Once the patent is granted, it gives the person granted the patent the right to stop a person that it believes infringes that patent from the infringing act, but it is likely that the first challenge will be on the validity of the patent, possibly leading to lengthy litigation. In light of the above mentioned figures, which are surprisingly high, would you have the financial ability to protect your patent? Should you consider whether there are any other ways in which you may be able to protect your idea? I am not suggesting that Patents aren't useful or that they should be disregarded and may well be the most appropriate route to protect your idea. The UK Intellectual Property Office web-site is a good source of information ( www.ipo.gov.uk ).
Secondly, and I am going to pre-empt this with the statement that I am not a litigator, the above came out of a costs hearing. Whilst a claimant or a petitioner in any action can spend as much as they like, if the costs judge determines that the costs incurred are disproportionately high, the case seems to show that it is not automatic that costs will be awarded to the successful party. However, I think that costs are for another day and another person!