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What you can and can't learn about patents from TV shows: Part 1

In this, the first part in a series of blogs, patent attorney Cory Stobart looks at what you can, and, probably more importantly, what you can’t, learn about the patent world from TV shows.

Like most of the UK population, with little else to do over the last few months, I’ve spent a large percentage of my spare time bingeing Netflix. Having exhausted a lot of new material, I’ve found my way back to the ever-trustworthy Suits, and whilst I’m apparently not allowed to count these hours towards my annual Continual Professional Development requirement, the many references to patent law do make for interesting discussion.

Don’t worry, we’ll move on from Suits references at some stage, but naturally it provides a good starting point, and we’re starting as soon as season 1, episode 2.

For those of you that haven’t watched Suits before (where have you been for the last 10 years?!), these nuances of patent law only provide a backdrop for the personal and political dramas of Suits that people really tune in for, so there shouldn’t be any major spoilers.

The storyline

In this episode, Harvey (experienced lawyer) and Mike (junior lawyer) are about to take their client into a meeting to discuss his invention (a new satellite phone) with potential investors. However, just before entering the meeting, Harvey tells Mike that he’s not earned the right to attend this kind of meeting just yet, and instead asks him to go and file a “patent claim” for the invention.

Mike doesn’t know how to file a “patent claim” (which we’re led to believe is solely because he’d never attended law school) and turns to the firm’s other junior lawyers and paralegals for help. Eventually, Mike gets the help he needs from Louis (another experienced lawyer), but in the meantime, another company beats him to it, filing a “patent claim” for the same technology before he does. As a result, the Patent Office rejects his “claim”, and the client is unable to proceed with bringing his new satellite phone to market, having spent $20 million developing the technology.

In the end, Harvey and Mike’s client receives a hefty settlement offer from the competitor company in return for not going ahead with his invention, having threatened to disclose the details online if no such agreement was reached, and conveniently, everyone’s happy!

Learning points

There’s so much we could extract from the finer details of this brief encounter, but let’s start with the key talking points.

1. Is a patent the relevant form of protection?
Suits has got this one right. Although other forms of intellectual property protection may also be relevant, if you’ve developed a new product or service, or even derived an inventive concept, then you should apply for a patent to protect that invention/concept.

2. Is “patent claim” the correct terminology?
Suits has got this one somewhat right. A patent “claim” refers to something much more specific than the application as a whole. When applying for a patent, you file a patent “application”, and that application will contain “claims”. However, those claims represent specific definitions of your invention that ultimately determine the scope of protection afforded by the patent, if/when it is granted.

3. Is filing a patent application a simple task?
Suits has got this one wrong. The episode strongly implies that Mike merely has the administrational task of filing some paperwork, a five-minute job to mull over in his lunch break. However, drafting and filing a patent application is quite the opposite. Patent applications are lengthy, legal documents that must satisfy many legal requirements, and generally require much thought and consideration. Generally, the process of drafting and filing an application will take between 2-6 weeks to get right.

4. Can anyone file a patent application?
Again, Suits has got this somewhat right. Technically, in many jurisdictions (though not all), anyone can file a patent application. However, this isn’t recommended.

Patent attorneys undergo years of training and professional exams to become proficient at drafting and prosecuting patent applications, and engaging a patent attorney to draft your application will a) substantially increase your chances of obtaining a granted patent, and b) optimise the protection (and therefore value) afforded by said patent. In relation to point a), we frequently see examination reports where UK patent examiners advise applicants to seek professional representation, because only *4% of UK patent applications filed by the applicants themselves achieve grant. In contrast, UK examiners suggest that figure is around *58% for applications filed by patent attorneys.

Furthermore, in many of those jurisdictions, although anyone is able to file the application initially, a professional representative is then required to prosecute the application before the relevant Patent Office, i.e., to get the application granted.

Finally, although Suits suggests that a solicitor should know how to file a patent application, and many probably do, a qualified solicitor is not professionally qualified to draft a patent application in the UK. That is, the patent attorney profession is a separate profession, which requires different prerequisites and qualifications. So, asking your solicitor to draft you a patent application is like asking us to advise on your merger; it won’t get you very far!

Look out for the next instalment of this series, where we’ll be looking into patent infringement, as discussed in season 3, episode 7 of Suits. In the meantime, please click here for more on how our patent attorneys could help your business.

*Source: UK Intellectual Property Office, 2020

Author: Cory Stobart



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