Intellectual property Toolkit

Patent injustice for small software companies

Ingrid Marson ZDNet.co.uk

Published: 29 Jun 2005 18:15 BST

Even the Patent Reform Group (PRG), which is campaigning to make the patent system more accessible for SMEs, says that legal help is a must.

"I would say, don't ever write a patent without using a patent attorney," says PRG chairman John Mitchell. "It's become such a technically complex process that unless you have a patent attorney your patent will be completely useless."

The cost of hiring a patent lawyer is likely to start at around £1,500 for a simple application and will increase for more complex applications, according to the UKPO. "If you're filing an application for basic mechanical technology it will cost around £1,500 to £2,000. If you're talking about an invention related to biotechnology that will arrive in the [patent] office in five boxes, that will hike it up," says the UKPO's Smith-Higgins.

But according to the PRG the extent of this "hike-up" could well be out of reach for a lot of smaller companies. The group's secretary Jon Miles says the UKPO is massively out with its estimations and that filing a patent application is likely to cost between £12,000 and £15,000 when you include factors such as responding to any queries during the patent approval process.

The reality out in the business community seems to be more in-line with the tens of thousands quoted by the RPG. Radioscape is a UK company, based in London, with around 90 employees, that fits squarely in the SME bracket. Given that its business is built around the emerging field of digital radio it has been forced to seek protection from the patent system on numerous occasions. So far, the company has filed about 30 patents at what is claims is a "considerable cost". The company not only employs a full-time patent lawyer but also uses external patent specialists to handle filing and enforcement.

"For a company of our size patents are a significant investment and for smaller companies the cost may be prohibitive. The view taken at Radioscape is that the value we get from having a granted patent is a worthwhile investment," says Richard Conway, the general counsel of Radioscape. "If you add up cost, particularly if you expand the patent beyond UK, it's quite substantial. [You have] the cost of patent searches, translating the patent into different languages, using an external patent attorney."

Although the Radioscape example highlights the significant costs of getting involved in the patent system, the company has also been used as a poster-child by pro-patent organisations. The company was cited on a recent UKPO document as an example of why patents are important for SMEs.

But in an ironic twist, although Radioscape has invested a lot of resources in patents for its various technologies, the company actually owes its very existence to the fact that some of its larger brethren chose to give it royalty-free access to some of their patents.

"We were formed in 1996 to take advantage of a digital radio standard — a group of companies such as Philips put patents in a pool to encourage small companies," says Richard Conway, Radioscape's general counsel. "If the standards body didn't exist and companies like Philips hadn't made their patents available, technologies like digital radio wouldn't be as common today."