From an innovative idea to its ultimate validation : for inventors and major manufacturers, patent filing always looks a bit like a technical and legal marathon... and one where the financial stakes are high. But can everything be patented? And how do you prepare for that? We'll show you the way.
Eureka! After long months of research, crash tests and prototyping, you finally have the idea that’s going to change the face of the world. But how do you protect your invention from being copied by someone else? By patenting it! Simple! Valid for 20 years, this industrial property title is a bit like a paternity test. In other words, it confirms that you are definitely the legal ‘parent’ of this invention. On paper, it all looks pretty simple.
In reality, the patent adventure is often fraught, exhausting and full of surprises; some good and some not so good. “For an invention to be patentable, it must meet 3 very specific criteria: it must be new, inventive and have an industrial application. It must provide a technical solution to a clearly identified problem,” explains Laurence Douysset, Head of the Industrial Property Department at Saint-Gobain. “But you have to be careful, because not everything can be patented! A mathematical method or a scientific discovery are not inventions, and therefore cannot be patent-protected. Designs, shapes or computer programs can be protected in other ways by design registration, trademarking or copyrighting."
So let's get back to patenting. The 400 or so patents filed every year* by Saint-Gobain are considered in light of strategic considerations by the R&D department, but also elsewhere in the Group! Because the filing of patents is a powerful lever of growth and value creation for the Group, research team members are also encouraged to do so. Their mission is to develop new products and processes away from the public gaze, and in the greatest secrecy. Having successfully passed the initial testing and PoC (proof of concept) validation stages, their creations will be subject to an internal ‘declaration of intent for patentability’ test. “The BU Industrial Property teams review all the relevant dissertations and work packages to identify any inventions that may be patentable,” explains Laurence Douysset.
Making a clear explanation without giving too much away
The rest of the process is the same for all inventors, whether corporate or independent. Patent applications must be filed with a national patents office (INPI in France, USPTO in the USA, etc.). Then things get more complicated, because the application filed must be absolutely precise in terms of the way it describes the invention or the claims that will define the scope of protection against infringement by others. All of these must be precise enough to inhibit competition, but without revealing any secrets about how the innovation is constructed or made! And there’s a good reason for this: patents are published 18 months after filing. So everyone can access this wealth of information, which every manufacturer uses to proactively monitor the tech advances being made by its competitors.“At this stage, our researchers work closely with our patent engineers to describe the invention in detail... and strike the best-possible balance between describing the invention in sufficient detail without giving all our trade secrets away! We also monitor and carry out research to find out whether such an innovation already exists, so that we can be certain ours is completely new and unique.”
Cost and regionality
And there’s also the issue of regionality. For a major corporate group like Saint-Gobain, it’s essential to file patents in several countries. Currently, the European Patent Office provides protection across several regions of the EU. However, it has no equivalent at the international level. So filing a patent in Japan, for example, will involve using professional intermediaries for translation, procedures, the filing process... All of which obviously have cost implications. And those costs can quickly rise to extraordinary levels! In addition to these translation and procedural costs, patent owners must also pay the annual fees required to ensure that their patents remain valid and enforceable. So the bottom line is that you need to be financially sound, because any return on this considerable investment can take a long time to realize. Very long in some cases... except where the patent is infringed. It’s therefore essential to go beyond ‘simply’ building a portfolio of patents and ensure that those patents create value and generate income.
Until it’s infringed, it’s still a patent
In this little game, competitors engage in real trench warfare. Each measures and assesses the patents filed by others, seeking to invalidate the invention or detect evidence of infringement, which can be (very) profitable for the patent holder. We’re all familiar with the headline lawsuits that Apple and Samsung regularly file against each other over disputes around paternity of the smartphone!
The other, and rather more rational, strategy is to generate income from your patent. For example, you can license a third party to use your patent in return for royalties on sales. You can also assign or sell your patent to competitors if you no longer want to make use of it.
Do you need to patent everything?
The ultimate, if not the only, question remains: should you patent your invention? That might seem an odd question. And yet many companies opt for total secrecy. Take the Coca-Cola company, for example, which has never filed any patent to protect the recipe of its famous drink. So what would have happened if the American giant had patented its soda? The recipe would have fallen into the public domain after 20 years. But by choosing not to patent its drink, Coca-Cola has been able to keep its manufacturing secrets for much longer than two decades.
So the question remains: to patent or not to patent?
*Source: Derwent Top 100 Global Innovator™ 2020 - Clarivate Analytics (Saint-Gobain is listed in this ranking for the 9th year in a row)