Jackie Whiteley: British entrepreneurs are at a disadvantage in patent law - but now we can do something about it

Jackie Whiteley is a party activist and the owner of a University spin-out. Follow Jackie on Twitter.

The main task of this government is to stimulate economic growth, and one way to do this is to change the patent laws in this country to even the playing field for British business. Currently we have a gap in the British intellectual property laws which benefits our competitors because we don’t have Utility Model Patents. These are fast track patents that benefit rapidly moving technologies and small and emerging businesses in particular. If Utility Model Patents are introduced, more businesses will be able to see their investment protected and there will be greater take up of the Patent Box tax incentives that phase in from 2013.

Whilst many of our competitors abroad have a simple, fast and economical way of protecting their innovations, we are left in a vulnerable position. At the moment, the only way to protect innovations so that rights can be legally enforceable is by making a standard application to the UK Intellectual Property Office for an Invention Patent. This is costly for small businesses, it can take up to three years to be enforceable, and many applications do not pass the stringent rules for novelty or inventiveness.

Many of our international competitors, and particularly the emerging economies of China, South Korea and Brazil, have recently adopted a dual system for patents along the lines that Germany has operated for over 100 years. Utility Model Patents are now used in 77 countries.

The question is why we have failed to recognise their importance to our economy despite there being several proposals for their implementation in the United Kingdom and in Europe. This is an excellent example of the inertia in the system which has stood in the way of our interests. France, Germany and other EU countries have acted unilaterally so why don’t we?

Utility Model Patents have simplified rules and are used when there is need for immediate protection. The cost is significantly smaller because they don’t need full examination and they become enforceable within months rather than years. The level of inventiveness is set much lower and tested at a national level rather than against the whole world. This is particularly important where there is an adaptation to an existing technology and where the current patent rules would reject the application as not being sufficiently inventive.

Whilst the ultimate sanction against infringement is to seek legal redress, in practice, having a patent in place can serve as a deterrent without costly legal action. Small companies are vulnerable because they can’t take the risk of going to court.  It can also be a stepping stone to securing investment for business expansion or to develop new products. We need to support SME’s if they are to help us grow the economy.

British companies can already gain Utility Model Patent protection in other countries so it makes sense for us to be able to do so here. The fact that protection lasts only 6-10 years is sufficient for technologies with a short life cycle. In fact the biggest benefit of these patents comes from the speed with which they are granted, in months not years, enabling injunctions to halt importation of copycat goods if necessary. A recent case in China settled out of court for $23 million in damages for infringement of a protected miniature circuit breaker.

The Patent Box tax incentive has been very well received across all sectors but, whilst patents are so difficult to achieve, financially and otherwise, and because their usefulness is doubtful for the fast moving technologies, arguably SME’s can’t take full advantage. We also need a change in the UK patent laws to make sure Britain's inventiveness is secured and benefits the UK economy. Our European partners and many other countries have done it without us. We are about to demonstrate our ability to act swiftly to stimulate the building industry, so let us do the same for British inventiveness.