Whose property is it anyway?

With Dyson and Hoover about to start slugging it out in a patent dispute over their bagless vacuum cleaners, Paul Carslake and David Fowler report on how to protect your ideas

Next Monday (17 July), a battle of titans will get under way in the High Court. James Dyson is sueing Hoover for allegedly breaching a patent protecting the design of his Dual Cyclone vacuum cleaner.

During the 1990s, Dyson’s company scored a remarkable coup by stealing the leadership of the UK vacuum cleaner market from under Hoover’s nose with his bagless Dual Cyclone machines. But Hoover has responded with its rival Triple Vortex design.

Hoover insists its design is based on offshore oil separation technology and does not infringe Dyson’s patent. Dyson, meanwhile, has patented the principle of using two or more centrifuges in a vacuum cleaner.

The stakes are high: if Hoover loses, it could have to withdraw its machine from the market. But it also demonstrates how important protecting intellectual property can be.

In the course of developing the Dual Cyclone, Dyson has filed over 100 patents, and, following years of struggle to get it to the market, has been zealous about protecting his invention. He has also filed suits against Siemens and Electrolux, among others.

But how effective is the system for protecting intellectual property? To patent something, an inventor or company has to make a full public declaration of the technological advance, in return for an exclusive right to exploit the development for 20 years, either directly or through licensing it to others. To qualify for a patent, you need to prove three things: novelty, an `inventive step’, and, equally important, an application for the idea.

In the UK, patents are granted by the Patent Office in Newport, headed by career civil servant Alison Brimelow, and employs over 800 staff. Most are high-powered technical experts. Applicants for jobs who do not hold a first class honours degree are automatically rejected.

`You actually do need experts in every kind of technology,’ says a spokesman – who also offers the useful clarification that the word should properly be pronounced `pat-ent’ rather than `pay-tent’.

As a government agency, the Patent Office is entirely funded by fees paid by those granted a patent – and the numbers have grown dramatically in the last 10 years. Partly this is because companies are more aware of the intellectual property risks. But though it is also because universities are getting more commercially aware (hence trying to squeeze profit from their research) as well as the increasing concentration of pharmaceutical and healthcare R&D in the UK.

At the same time the Patent Office has dropped its £50 fee to apply for a patent, which may encourage some of the smaller companies that are innovating. The worth of a patent depends crucially on a proper search having been done of the database, and it is here that the costs start to mount.

Searching the system

A UK patent grants monopoly rights to exploit the idea in this country alone, which is insufficient for many globalising businesses.

Pan-European patents require a search through a much longer list of possibly similar technologies, and can cost many thousands of pounds a year to renew.

But without a patent search, the risks of re-inventing the wheel are always present. Patent Office officials – albeit with an interest in gaining new business – point to figures that show that 30% of European R&D spending ends up going nowhere because the idea already existed.

`People are simply not checking the product databases,’ says a Patent Office spokesman. `And these are freely accessible through our own database, which is simply on our website.’ That site is getting 80,000 hits a day, the Patent Office claims.

There is, however, considerable discontent among inventors about how the patent system works. Trevor Baylis, who struggled for years to find a backer for his invention of the wind-up radio, complains that there is nowhere inventors can seek impartial advice.

Baylis eventually found a backer for his idea after going public on TV. But if an invention is not patented, going public not only risks giving the idea away, but can make it impossible to patent it in the future. If an inventor discusses an idea with an unscrupulous firm, there is nothing to stop that firm using the idea without paying or crediting the inventor.

It is for this reason that Baylis has for a long time wanted to create an Academy for Invention, where inventors can seek advice in a secure environment. Last year the Institution of Mechanical Engineers offered Baylis space at its Westminster headquarters for the academy. Baylis is trying to raise £100,000 to get it off the ground. `I had no help with patenting or preparing a business plan,’ he says. `Without that help, how can a fellow protect himself from predators?’ Baylis estimates that the UK has lost £165bn through inventions made here but exploited abroad.

Sometimes patenting can be counter-productive because of the need for public disclosure. In developing its aluminium chassis for the Lotus Elise, Lotus deliberately decided not to patent certain aspects of it. An engineer explains: `Patenting the process means putting it in the public domain. Anyone can look up the patent; they can then use the process in a factory behind closed doors, without the possibility of being detected.’

High price for protection

But even with the best advice in the world, an inventor still has to pay renewal fees to keep patents in force from the fifth year onwards. If he or she is seeking to protect the design in several markets, this quickly escalates. Then there is the cost of law suits if a patent is infringed.

Because of concerns such as this, James Dyson is bringing another case. This one is in the European Court of Human Rights and it is against the Patent Office itself.

`I’m trying to get patent fees declared illegal under article 10 of the European Convention on Human Rights, which says a person should be able to trade freely in his or her work of art. If you have a great invention and want to patent it in 20 countries, you can easily be paying up to £1m in renewal fees. When I was a struggling inventor, I couldn’t afford to renew patents and had to let them lapse. It’s a very unfair system,’ he says.

www.patent.gov.org

Additional reporting by Lucy Daltroff

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