Make it patently obvious

PATENTS: So, your invention is guaranteed to make you rich, but unless you protect your idea, someone else may enjoy the fruits of your labour

A man goes to visit his friend, an inventor who lives in a stately home. Over dinner his host excitedly takes out his latest innovation, a ballpoint pen. The man is impressed: "That's fantastic - you could make a lot of money from that, so be careful who you show it to," he cautions. "Oh, it's fine," replies the proud inventor. "The only people I have told are Bic the butler and Biro the garden boy. . ."

It may be a corny joke, but it illustrates that when it comes to earning riches from your invention, loose lips can sink ships. So when you have an epiphany and come up with perhaps not quite the ballpoint pen, but a potentially lucrative innovation, what can you do to protect it?

The first step is not to shout about it from the rooftops, agree the experts. Disclosing technical details publicly about your invention could ruin your chances of getting a monopoly in the marketplace.

In fact, sometimes just keeping the specifics of your invention confidential indefinitely can be an effective way of stopping your competitors from making money from it. The approach has worked for giants like Microsoft and Coca-Cola, but it can be a risky business. "If you go down that route then you have to be very careful," says Katrina Crooks, a solicitor with the intellectual-property team at McCann Fitzgerald. "You are probably going to have to disclose it to some people if you are going to use it commercially. So you have to enter into appropriate confidentiality agreements so they can't use what they get to know other than in the way that you want them to."

If keeping mum is too precarious in the longer term, another option is to file for a patent, an agreement between an inventor and a country: you disclose the technical details of your new or improved product or process to the public, and in return others can't exploit it there for a set period of time.

"A patent is basically a right that you can obtain to prevent other people using an invention that you have created," explains Crooks.

"It's a quid pro quo arrangement where in order to get a monopoly right, you have to disclose that information. The monopoly right in most countries lasts only 20 years, and after that anyone can use that knowledge."

It's worth noting that a patent does not give you the right to make money from your invention: it simply excludes others from doing so.

"If you come up with an invention, you don't have to have a patent to be entitled to use it - as long as you are not encroaching on anyone else's rights in some other kind of way," says Crooks. "Getting a patent and being able to use it yourself are two different things. A patent gives you a monopoly, a right to prevent other people from using your invention."

Patenting your innovation is just one of many layers of protection that fall under the umbrella of intellectual property. Other layers include trademark and design protection for products, and copyright for artistic works, she explains.

Taking out protection on intellectual property gives the inventor a fair crack of the whip in the market. Perhaps more significantly, says Crooks, patents also provide an incentive for research and development. "If there was not an easy way of protecting an invention, then people might not go to the bother of inventing it."

However, even if you decide to travel the patent route, it's still wise to keep a lid on the finer details until you file for protection. "Your disclosure to the patents office has to be the first public disclosure," says Dr Fergal Brady, a patent examiner with the Irish Patents Office in Kilkenny. "If you disclose it some other way, it may prevent

And before racing off to write your application, make sure you have something to patent. An idea is seldom enough to go on: you have to put flesh on the bones, according to Dr Brady.

"You don't need to bring a Heath Robinson-style illustration in to the office," he says. "But you do need to be able to describe what you think a working example would be. You need an embodiment - this is my idea, it requires the minimum to be achieved and these are the features you would see on it, if it's a product."

It's also important to think carefully about what you write in a patent application, as it may have to stand up in court later on, adds Dr Brady, who suggests contacting the Patents Office or a registered patent agent for advice.

"It's both a technical document, a disclosure of what it is, and it's a legal document, the basis of a prosecution in the future. If you want to sue me for an infringement of what was your idea, that idea has to be expressed in terms that will satisfy the court."

The Patents Office deals with around 16,000 patent applications per year, and the vast majority are European patents that designate Ireland. A trained chemist, Brady often reviews applications for products like medicines, pesticides, food additives, and processes for analysing materials.

But at present there are plenty of other, less esoteric inventions passing through the office, including improvements to bollards, dog leads and bicycles, a carmat, a tractor part, a bag holder, a legwarmer and a picture frame.

Much of what they see tends to be minor tweaks to existing products, rather than reinventions of the wheel, says Dr Brady.

"It has to have at least one feature about it which is a technological improvement on what was there previously," he explains. "Most patented inventions tend to be for small, incremental improvements."

For each one, the state has to verify that the invention is viable and truly new, and the process can take up to a few years. Within that time the inventor also has to decide where in the world to patent the invention, which is very much a commercial decision based on whether the invention will sell there, explains Dr Brady.

And once that step has been taken and a patent is granted in a territory, there's an annual renewal fee, which, generally speaking, increases over the term of the patent. But you are not chained to the patent for the 20 years, he adds.

"If it turns out that there's no more money to be made from it, you can just walk away and not pay your renewal fee so the patent lapses."

So you have come up with the great invention. How much will it cost to patent it in the marketplace? Thousands at least, but if the invention is a success, it's money well spent. "It depends on the commercial value of the invention," says Conor Boyce, a partner with FR Kelly & Co. A monopoly on Viagra might cost hundreds of thousands, for example, but it would be worth it, whereas paying even a few euro to patent an invention that makes no money would be considered expensive.

While it is possible for the inventor to prepare a patent application themselves, applicants are generally advised to enlist a trained specialist to help ensure the document is prepared appropriately. It may cost a little more, but it could save heartache later on.

"The initial cost of preparing the patent application is directly proportional to the invention's complexity," says Boyce. It might take a patent agent only a few hours (at around €200-300 per hour) to prepare the document about a straightforward improvement to a shovel, he explains. But a more complicated case could bump up the fees to €6,000.

As the application moves on to the filing phase, you have to decide where to apply for patents in other countries. This is where the costs can mount. In general, it costs around €2,000 to file in an English-speaking country, while paperwork such as translation will roughly double that cost in non-English-speaking countries.

Predicting the countries where your invention is likely to succeed over the course of the patent is tricky, says Boyce. But in some cases, sometimes a single country is enough. The majority of software patents are taken out only in the US, and may cost as little as a few thousand euro, he says.

Some cases lack viability from the start, says Dr Brady. "You get the odd crank," he muses. "You get the guy who thinks he has invented infinite energy or a perpetual-motion machine or time travel, and you have to gently point out that the laws of physics don't allow it."

However, even if an invention conforms to scientific principles, a patent doesn't automatically mean you will make your fortune. Rather, it's a tool to stop others from taking advantage of it, stresses Dr Brady.

"A patent is not a state endorsement," he says. "It's not that the minister of Enterprise, Trade and Employment believes your invention to be sound. "It's merely a monopoly, and whether it sells or not is up to you."