Five Pernicious Intellectual Property Myths

Jane Lambert

In this article, I am challenging the following myths that are probably responsible for our trailing many of our competitors in the number of patent, design and trade mark applications.

Myth #1  There's no point in acquiring an intellectual property right because you can never afford to enforce it.

It is probably still the case that England and Wales (and indeed Scotland and Northern Ireland) are among the most expensive countries in the world to bring a full blown patent action.  That is because our legal system provides for close investigation of the evidence and full consideration of the arguments which tends to assure the most just outcome.

But most IP cases do not require that degree of scrutiny. For the last 6 ½ years the Intellectual Property Enterprise Court (formerly the Patents County Court) has provided a high-quality dispute resolution service where the issues are defined in advance, trials are limited to two days and recoverable costs are capped at £50,000  (see Jane Lambert New Patents County Court Rules 31 Oct 2010).

Since 1 Oct 2012, there has been a small IP claims track that covers claims for injunctions and damages limited to £10,000 where the recoverable costs are limited to just a few hundred pounds (see Small IP Claims).

Now every solvent business should be able to afford to bring or defend a small IP claim and most can afford some kind of IP insurance (see IP Insurance: CIPA's Paper 1 May 2016 Inventors' Club).

Myth #2  Don't bother with IP because they will only take it away from you if you try to enforce it.

This is usually a cry of despair when an IP owner realizes that IP law does not exist solely for his or other owners' benefit.

Intellectual property law balances three public interests:

• incentivizing innovation and creativity,
• promoting competition between suppliers, and
• safeguarding consumers' choice.

By its nature, an IPR is a restriction of competition and customer choice which is granted only where it is earned and deserved. That is why we have continued scrutiny of registered rights after grant particularly during infringement proceedings which occasionally results in the revocation or invalidity of the grant.

However, inventions, brands and designs that truly merit legal protection will always get it.

Myth #3  Why go to court to enforce your IPR? You can rely on the CPS or trading standards to do it for you.

Some IP infringements are offences but not all or even most of them. Most notably, it is not a crime to infringe a patent in this country. Also, prosecuting authorities do have other priorities.  Primary responsibility for enforcing an IPR rests with IP owners and the usual way in which they enforce their rights is by taking action against infringers in the civil courts.

Myth #4   Why take out IP insurance? You can always find a lawyer to take up your case on a "no win no fee" arrangement.

Increasingly unlikely since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has abolished recovery of success fees and after-the-event insurance premiums (see Jane Lambert Intellectual Property Litigation - the Funding Options 10 April 2013). From an IP lawyer's point of view, conditional fee and damages based agreements do not make any kind of sense. 

Myth #5   Why pay for a patent, trade mark or registered design when you can rely on trade secrecy, passing off or design rights to protect you for free?

Different intellectual property rights do different things. 

There is often some overlap between say passing off and trade marks and registered and unregistered designs but one right does not substitute for the other.

Patents and trade secrets are diametric opposites. You get a patent by telling the world how to make or use your invention. You keep a trade secret by staying stum and rely on the law of confidence to make others who are in the know to do the same.  Sometimes trade secrecy can be very effective. The recipe for Coca-Cola has been kept secret for over a century and that for Chartreuse for many centuries, The problem is that the obligation of confidence disappears once the trade secret is generally known. That can happen through parallel research or even reverse engineering.

You always consider the full IP toolbox when devising your IP strategy and choose the rights that are most effective for your business and fit your budget.

If you wish to discuss this article, call me on  020 7404 5252 during office hours or message me through my contact form.