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The real use of a patent

Innovation arises in companies as an impulse, an instinctive response to the need to adapt to the changes that take place in the market. In times like the present moment, characterised by both risk and opportunity on a global scale, the way in which we innovate has become a key factor which should also be analysed from a broad perspective.

It is therefore of fundamental importance to have the information that allow us to recognise the strengths and weaknesses of the knowledge created within our organisation. The aim should be to ensure that the products and services that we offer are competitive, mainly as a result of their ground-breaking component, in which our key advantage resides.

By the same token, the next step will be to protect our innovations. There are a number of tools at our disposal here, depending on the type of innovative knowledge that needs to be protected.

Nevertheless, perhaps the best known of these is the patent. What good does this actually do? It goes without saying that a patent is not a solution that guarantees per se the commercial success of a specific ground-breaking product. However, it is a tool that serves – together with the trademark – to keep the relative position that said product has achieved for itself on the market.

The patent is therefore a tool that can protect our innovations from competitors, although it only really comes into its own if we are prepared to defend the position of privilege that the patent bestows. If not, the patent is just an unnecessary expense, as it no longer serves its purpose – guaranteeing a return on investment, ensuring the sales monopoly applicable to the products or services that make up the patented solution.

The patent is therefore a reflection of how the company values the results that its hard work has achieved. If, at any time, the knowledge created was deemed to be deserving, a new product or service based upon it would surely have been developed, with an interest also taken in applying for official protection which would conferred before third parties the exclusive right to exploitation of said product or service on the market. This is essentially the basis for a patent, the offering of economic value and the creation of what is in fact a real asset for the company, an asset which can be recorded in the company’s accounts, leveraged and even be the object of lucrative commercial transactions.

This, however, is not possible if once the patent has been filed, we do not monitor the situation and fail to take appropriate action in the event that potential threats are detected.

The problem with patents in Spain

The problem with patents in Spain is two-fold:

• Firstly, they are only really useful if what it is being protected really merits protection, in other words, is something that is genuinely new with a sufficiently “inventive” step when compared to existing solutions within a global context. Steps are therefore being taken to attempt to resolve this problem. Congress recently passed a draft bill to reform the existing Patent Act which will see, among other things, the application of a single granting procedure based on a preliminary examination of the invention in question, similar to that employed in principal European countries as well as by the European Patent Office.

• Secondly, taking the issue one step further, a patent is only of use if its owner is prepared to assume the responsibility of the ensuing costs involved in its defence, adopting a firmer, more proactive approach.

To conclude therefore, patenting is not enough. We also need to seek patent protection by applying sound criteria and know how to defend the patents granted. If not, the exercise merely resembles a knight trying to conquer a kingdom without getting off his horse.

Carmen Sánchez-Puelles