Friday September 4th 2009, by Piers Strickland
The Dragons’ Den television series always raises a smile on the face of intellectual property lawyers, as it emphasises the importance of intellectual property rights in the modern competitive market.
One of the first questions often asked of the inventors by the Dragons is “who owns the rights to this product”. Frequently, this translates as to meaning who owns the intellectual property rights in a product. In the most recent episode broadcast of Dragons’ Den, a 21 year-old inventor, Vernon Kerswell, faced what came close to threats of patent infringement from Peter Jones, who is a 25% owner of a competing toy company.
Peter Jones claimed that there was no way this inventor could sell his wheeled helicopter device because his company owned the “worldwide patent” on this invention. Strictly speaking, there is no such thing as a unitary worldwide patent, so Peter Jones can be quite legitimately accused of over-stating his position right at the outset. In any event, patent issues are rarely simple enough to make broad sweeping generalisations, without a careful consideration of the issues.
In assessing whether the wheeled helicopter device does amount to an instance of patent infringement, a court would analyse the claims of the patent to see if they cover the new product. The court would also usually be asked to decide whether the patent in question was valid.
Many granted patents are in fact invalid, hence perhaps Peter Jones’ sensitivity by claiming the patent in question was “watertight”. Also, the wider the claims of a patent are, the more chance they often have of being judged invalid. Furthermore, patents are time-limited, generally to around 20 years, so while they offer a monopoly over the invention in question, it is a monopoly right that does not last forever.
In the field of helicopters, which have clearly been around for well over 20 years, one issue would be how much longer such patents will be in force. On the other hand, novel applications of existing technologies can, on occasion, give rise to the right to a fresh patent.
Conclusion: inventors should not take at face value broad statements from patentees / patent licensees, such as Peter Jones. The law in this area is complex, so much so that the great Evan Davis clearly is muddled himself referring to this patent infringement issue as a “copyright infringement” matter.
A specialist intellectual property lawyer can often find a new company an effective and safe way through what it called the “patent thicket”. As is no doubt one of the Dragons’ mantra (so long as they don’t have a competing vested interest), perseverance pays dividends.
