Patent tip: Add a change of control clause!

Sometimes a license deal can become a pain in the neck, for instance when one of the license partners is taken over by an unfriendly competitor. Both acting as licencor or acting as licensee, an unfriendly competitor can potentially block trade of the goods and services delivered under the license agreement.

For that reason:

I wish you a great 2016 and happy inventing,

Hendrik de Lange
+31 (0)6 481 74 686
Dutch and European patent attorney
http://www.octrooifabiek.nl

Patent tip: Know the numbers!

Patent documents are given a range of extensive numbers. From the mere numbers, quite some information can be deduced.

Application number EP

The application number of European patent applications comprises 8 digits and a check digit. The first two numbers reflect the filing year, the remaining digits reflect the filing instance. For every filing instance slots of numbers are reserved.

The slots are for applications filed in Munich: 000001–075000, in The Hague 075001–090000, in Berlin 90001–95000 and finally applications filed via the online filing system: 100001–2500002

The sizes of the slots give an indication of the workflow of the various instances of the European patent office:

Within the slots, the numbers are given out time based consecutively.  So if an certain application cant be retrieved, the number itself still does reflect its date of filing. Sometimes, the exact date of filing can be deduced, from a one number up one number down analysis.

Application number US

In the USA, the application number comprises a serial code and a consecutive number, reflecting the filing date. Here the serial code is ticked up every time the following consecutive filing number is about to surpass 5 digits in size.

Applications with serial codes 7 are filed between 1987 and 1992, 8 between 1993 and 1997, 9 between 1998 and 2001, 10 between  2002 and 2004, 11 between 2005 and 2007, 12 between 2008 and 2011, 13 between 2012 and 2014, and finally the serial code 14 is still in use for applications being filed in 2015. Likely in 2016 the serial number will be 15.

Publication number

The patent publications numbers are consecutively numbered, either based on the filing date, e.g. the European system or the date of the grant of a patent, like in the USA. So from the number alone a neat estimation of the effect of the relevant patent can be guessed. Most likely, USA patent numbers below US5500000 have expired and European patents numbers below EP079900 have expired and are no longer in force.


In Europe, the publication number is regularly followed by a two character code A1, A2 or B1. These codes are reflecting the status of the document at the time of publication.

The codes starting with an A all relate to publications of applications for patents. A1 represents a publication, with an accompanying search report. A2 represents a publication of the application without an accompanying search report, A3 represents the publication of the search report following an A2 publication, A4 represents a supplementary search report.

Rarely used: A8 a publication of a corrected page of an A1 or A2 application, A9 a full reprint of an A1, A2 or A3 publication.

The codes starting with a B all relate to a granted patent. So the scope defined in the claims in these documents do reflect the scope of protection as being granted to the holder of the patent in question.
B1 reflects the patent as granted, B2 a reissue after amendments after e.g. an opposition procedure, B3 a reissue after amendments following an limitation procedure.

Rarely used: B8 a publication, a corrected title page of a B1 or B2 publication, B9 a full reprint of a B1 or B2 publication.

Which number is which? 

If you do not know which number is an application number and which is the publication number, look at the so called INID codes, small numbers placed in brackets or circles before most data entries on a publication cover sheet. Typical the application number bears the INID code 21, the publication number bears the INID code 11.


So the numbers do tell you something!

I wish you happy inventing,

Hendrik de Lange
Dutch and European patent attorney
+31 (0)6 481 74 686

Sources:

Wipo standard 13:  http://www.wipo.int/export/sites/www/standards/en/pdf/03-13-01.pdf

USPTO application numbering system: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/filingyr.htm

EP publication coding: https://www.epo.org/searching/essentials/definitions.html

INID codes: http://ip-science.thomsonreuters.com/m/pdfs/dwpicovkinds/inid_codes.pdf

Patent tip: Negative written opinion may well be positive news!

In 85 percent of the patent applications, filed in Europe, a negative search report and a negative written opinion on the patentability is issued.

Normally, you as inventor receive the search results from your patent attorney, together with a written opinion. Most of the time these results and the appending written opinion are very negative. Here is an exemplary case of an excerpt out of a written opinion sent by a patent examiner:

So, you have spend several thousands of Euros to get there, you have waited about half a year or longer wherein you have not heard a thing and then, this destroying, negative opinion comes out. You may become quite emotional about this! But before you want to seriously hurt your patent attorney, please consider the following:

If you want the broadest protection possible, would it be optimal if the claims were so restricted that there was not found any relevant state of the art?

If you are not clear which direction the innovation is going to be developed in detail, would it than be optimal if the claims were so restricted that it was hardly possible to tweak them?

Well?

Thus, in most cases a negative written opinion is positive news!

I wish you happy inventing,

Hendrik de Lange
European and Dutch patent attorney
tel +31 (0) 64 81 74 686

Patent tip: Stack your patents!

When an invention is selling or, better still, is selling profitable, then it may be wise to stack patents. Patent stacking is best explained by an example. This example is about kites for kite surfing.

Example: Kite patent stacking

Yearly estimated tube kites sold globally (blue line) and various patents on tube kites:
white the basic model tube kite, red the four lines improvement, green the bridle
improvement and yellow the bow kite.

This image shows the most relevant patents on tube kites, invented by Bruno and Dominique Legaignoux. The left hand side arrow indicates the filing date of patent applications for the specific technology, the right hand side arrow the expiry of the related patent protection. The first patent application on tube kites was filed in 1985, while the first product became commercially available only around 1995; a good ten years later. The Tube kite patents expired in 2006, while the market was still in its infancy.

In 1995 the Legaignoux brothers filed a patent application for a four line design, greatly improving maneuverability and safety of the kites. While the four lines kites were greatly improving some of the properties, the bridle type of leading edge connection further improved the maximum power and shape stability on the kites. The patent application for this technology was filed in 2000.

One of the most recent developments is the bow shape of the kite, which further improves aerodynamics of the kite.

So although the basic tube kite patent is now expired, and the four line patent is expiring soon, still protection on improvements stretches on till 2026.  So stacking patents and thus stretching protection is a very sensible thing to do, provided there exists a selling product or selling service underneath.

When to stack patents? 

So when is it sensible to stack patents this way?

Well if the diffusion of the invention is relative low, compared to the size of the market. Another quite illustrative example is the -relatively slow- development of the steam engine:

Here the patents of James Watt (first represented by white, the last represented by red arrows) covered less than 1 thousandth of the market. Because diffusion was so low, more patents could have been stacked. The estimated time till full saturation of the marked is about 235 years!

When not to stack patents? 

Well for those inventions that will not find any reasonable sales, patent stacking is a waste of time, money and resources. For inventions that diffuse so rapidly, that the market reaches saturation before expiry of the patent, stacking may be wise as well. In the following image the first iPhone design protection is indicated. The estimated time to reach full saturation of the market is about 12 years.

The iPhone design was granted a design patent in 2008 and will expire in 2022. In the S-curve fitted model, the expiry is when almost full saturation of the market will be reached. It is noted that this design is most relevant for the first generation iPhones, which was overtaken by newer designs:

So stacking is a very wise option, provided your technology has become commercially relevant.

I wish you happy inventing!

Hendrik de Lange
Dutch and European patent attorney
+31 (0) 6 481 74 686

Sources

About the patents on tube kites:
http://inflatablekite.com/siteinf/gb/InfPatent.html


Watts first steam engine patent (espacenet):
http://worldwide.espacenet.com/publicationDetails/originalDocument?CC=GB&NR=176900913A&KC=A&FT=D&ND=3&DB=EPODOC&locale=en_EP


Patent on a steam engine with an improved equalizer (espacenet):
http://worldwide.espacenet.com/publicationDetails/originalDocument?DB=EPODOC&II=2&ND=3&adjacent=true&locale=en_EP&FT=D&date=17820704&CC=GB&NR=178201321A&KC=A


Watts steam engine with rotary motion patent (espacenet):
http://worldwide.espacenet.com/publicationDetails/originalDocument?DB=EPODOC&II=1&ND=3&adjacent=true&locale=en_EP&FT=D&date=17840825&CC=GB&NR=178401432A&KC=A

Vision, Focus and IP, a powerful mix

Please allow me to share this cool story, it is about Arthur Oude Roelink, inventor and CEO of Jonge Poerink Conveyors B.V., located in Borne, the Netherlands. Jonge Poerink Conveyors B.V. is a mid sized production enterprise providing internal transport solutions to the food and packaging industry. Arthur is leading this company of about 50 people since 2010. He is a passionate motorcyclist and an engineer in heart and soul. As he describes himself, his preferred occupation is being somehow in the close surroundings of metal cuttings.

Trexx

Arthur has a passion for innovate thinking and I was privileged to contribute to one of his inventions, now known as Trexx. This is the first modular, build it yourself conveyor system, of which the structural framework, the track portion is made of rotation molded plastic. The Advantages of this system are numerous, such as easy construction and flexible alteration, superior cleaning properties, light weight construction and low environmental footprint, when compared to conventional conveying systems.

Six self explanatory steps to assemble a Trexx conveyor

The market

Slowly, more and more industries see the huge benefits of the Trexx system. As Arthur stated, the most difficult part of this development was to convince his own colleagues of the benefits of this system. Indeed, in a world where the construction material of choice is metal, developing a plastic alternative is unconventional, to say the least. Such an unconventional alternative meets some skepticism at first. This is also a reason why the adoption by the industry is slow at start. Though people see the benefits, risks are to be avoided, and the unknown, inevitably bears some risks.  Now that the first launching customers have incorporated some Trexx systems and are convinced, the number of clients will expand.

Rotary molded conveyor track portions of the Trexx system

Protection

My modest role in the development was to obtain a proper patent protection on this invention. Since the patent applications were filed at an early pre-prototype stage of development, I had quite some liberty in making the first rough sketches of the product. As there was virtually no related state of the art, we could obtain a very broad scope of protection on this revolutionary concept. It is very rewarding to see that the rough sketches later on appeared to be very close to the final product.

A figure in one of the patent applications of Jonge Poerink Conveyors B.V.

Will this invention be a success? Since Arthur and his amazing team have incorporated the powerful mix of vision, focus and IP, this invention is going to be very successful!



Hendrik de Lange
Dutch and European patent attorney
http://www.octrooifabriek.nl

Sources

The Trexx website: http://www.trexx.com/





 

Patent tip: Celebrate the unsuccessful inventions, they are great too!

This patent tip is about unsuccessful inventions. There a lot more unsuccessful inventions than successful ones! About 97% of all patents filed have proven to be commercially unsuccessful.

Much like our own genetic code, where quite the same is true. About 3% of our DNA comes to expression, the remaining 97% is non-coding or junk. The 97% junk, both in our genetic code and in innovation do however serve a purpose!

Without the Junk, the coding DNA, as well as the successful inventions would not have come to existence in the first place. It is much like a random game, where the same statistics apply: large numbers are required in order to arrive at the 3%.

In that light, please celebrate the failures as much as the successes! Here is one of my own failure inventions (it is easier to laugh about your own failures than those of someone else) as illustative example:

The ice bottle.

This great invention was a bottle of ice. When discarded, all that is thrown away is water, how cool is that! After some experimentation though, these bottles were proven very unstable and without any additional plastic lining, utterly useless.

However useless they were, I cannot describe the fun I had in figuring out how to make the prototypes and to test them.  I cannot describe the fun I had running -a paper only- state of the art search at the premises of the European Patent Office, in Rijswijk, back in 1996.  I cannot describe the fun I had figuring out how to write my first patent application, eating my way through quite complex procedures. I cannot describe the fun I had reading through a body of the state of the art, that time containing about 400 patent documents (the entire subclass A23G9/083).

Unsuccessful inventions are great too, inventions that do not work provide knowledge too. Celebrate them!

I wish you all: happy inventing!


Hendrik de Lange
Dutch and European patent attorney
http://www.octrooifabriek.nl

Patent tip: The main parts of a patent

Somehow, the number 3 returns in some essential aspects of patents. The first magic three is found in the three main and distinct parts contained in a patent. These parts are the cover sheet, the description and the claims.

Cover sheet

The cover sheet is indicating among other information, the persons in question, being the holder(s) of the right and the inventor(s) of the invention. The cover sheet thus indicates the economical player(s), who may benefit from the temporal monopoly.

Description

The description is indicating the specifications of the invention. This is a very detailed technical description, mostly accompanied by some figures.

The description allows someone in the specific field of technology, with a basic technical background to understand and reproduce the inventions, without undue effort or excessive experimentation.

Claims

The claims define the scope of protection of the patent. The claims form are by nature the pure judicial part of the patent, delimiting the protection form the rest of the state of the art.

The claims delimit the monopoly monopoly of the holder from his competitors. They define a fine invisible demarcation tape, where to go and where to "trespass" i.e. where to infringe the right in force.

Magic combination of three disciplines

Looking from a bit more distance to these three main parts, the represent three key disciplines an economical, a technical and a legal discipline. Such combination of disciplines is in fact the core of technical enterprises. This combination renders patents by nature complex, yet makes them dauntingly interesting.

I wish you happy inventing!

Hendrik de Lange
Dutch and European patent attorney
http://www.octrooifabriek.nl

Patent tip: Register your licenses!

It happens quite a lot, that a license is not registered in the relevant patent register. In that case, the licensee cannot start any action against an infringer and cannot claim any damages. For that reason:

When writing the license agreement, it is sensible to put in who (licensee or licensor) is responsible for the registration, and what happens if this has not been done. The party most benefitting from a proper registration is the licensee, so he/she is the most likely party to have the responsibility of arranging a proper registration.


Hendrik de Lange
Dutch and European patent attorney
+31 (0) 648 174 686

Patent tip: Top 10 reasons to patent

1. To protect a competitive advantage

By preventing others from entering a market or using a specific technology, a monopoly can be obtained with patents. Thus a patent portfolio becomes a business insurance against infringement, abuse or technological piracy.

2. To increase value of your business

Because of an obtained monopoly, higher margins can be generated, leading to higher profits and a higher company value. Patents can simply help in generating a higher return on investment.

3. To increase credibility of your business

By filing patent applications, there is some evidence of a technological progression in your company. This can help attract higher skilled staff and can convince potential clients that you are advanced and innovative. Thus you are likely offering them state of the art service, leading them to have a competitive advantage as well.

4. To enhance your power in negotiation

In mergers or takeovers, a patent portfolio represents additional value, especially when the underlying products or services are commercialized. A party with a portfolio is being taken more serious by competition. Competitors will rethink copying and forcing you out of the market, when there is a risk of legal procedures. A takeover or merger is a more likely option.

5. To raise licensing revenue

By licensing out technology, passive income can be generated, with relative low expenditure of resources, such as production facilities, distribution facilities and aftersales. Licensing partners may have far superior resources, which can be used to the advantage of both licensing partners. Licensing contracts can be made with non competitors in various different fields or even with competitors in the field of business the patent holder is active in.

6. To convince investors to invest

It is a great advantage if the technology at stake is protected, so that higher value can potentially be generated. Especially granted patents present a proof that the technology can be monopolized. For start ups, the existence of a patent portfolio can even be the essential feature for attracting investors and can be instrumental for the survival of the company.

7. To obtain a positive image of your business

Patents are still seen as a high value publication, and can be used as a marketing tool, both for innovative aspect as well as for a perceived level of quality. Your patents portfolio is a strong indication that your business delivers state of the art products or services.

8. To improve defense against infringement cases

In infringement cases, if the infringed portfolio can be more powerfully countered with an own portfolio. It makes a cross license deal more likely and greatly enhances the chances of avoiding any verdict to pay damages. "If you sue me with your patents, I will sue you with my patents" is a wonderful medicine against over aggressively litigating competition.

9. To promote innovation among employees

If there is a patent policy in place, employees are given some incentive to innovate and apply for patent protection. This can be -an often underestimated- aid in boosting personal scientific publication strength of employees and in honoring the inventors. Thus patents can provide a considerable intangible value for staff engagement.

10. To reduce profit taxes in innovation stimulating fiscal regimes

A number of tax incentives are provided for innovative industries. In most cases tax authorities accept granted patents as a valid proof of innovation.

11. To prevent others from protecting specific technologies

For a considerable number of companies, this is the main reason to pursue patent protection. However it actually does not lead to a very profitable, society contributing business. Numerous industries hoard patents, and sit on them doing nothing. In most countries however, "non usus clauses" prevent this practice from being very successful, except in the USA, where "non usus clauses" are absent in patent law. Thus, non-producing entities (NPE's) with huge patent portfolios, are very much a US-phenomena. NPE's mainly dominate the US-market and are rarely seen in e.g. the European countries.

Since this last reason reflects an objective to hinder someone else rather than to progress ones own business, it is placed where it belongs, outside the top 10.


I wish you all happy inventing and a great, healthy and successful 2016!


Hendrik de Lange
Dutch and European patent attorney.
http://www.octrooifabriek.nl

Patent tip: Tricky stuff in patent valuation

In patent valuation, the value of a patent much depends on paying customers, persons who are willing to give money in exchange of the products or the services that are covered by the patent in question.

However, when there is another very important factor at stake: that factor is the diffusion coefficient of innovation.

Diffusion coefficient of innovation 

The diffusion coefficient of innovation is an indicator of the speed at which an innovation "diffuses" through the market. The best to explain the diffusion coefficient of innovation is by the following two quite famous examples:

Steam engine

If you look at the face of James Watt, he appears to be a man with concerns or a troubled mind, well he has reason to be concerned! In the following image the diffusion of the steam engine in the USA is presented, where the arrows indicate the time span his patents were in force.

The patent protection covered a time span in which a marketshare of less than one thousandth of the total market had been reached. Watt had all reasons to be deeply concerned!

Television

How else did the following inventor preform! Zworykin was one of the inventors who essentially contributed to the development of the television. His contribution mainly was related to the development of the cathode ray tube.

Looking at the face of mr. Zworykin, he appears to be quite content, and yes he had all reasons to be a happy man! If we look again at the USA market, and the diffusion of the number of television sets, we see why Zworykin had all reasons to be a happy person:

In this figure the first arrow indicates the date of grant of the patent and the second arrow the date of expiry of the patent. During the time span the patent was in force, more than 60% of the entire market had been reached.

Patent value

When looking at the value of both patents, well it is needless to say, that Zworykin's patent was worth a lot more than Watt's patent.

In the above examples, the diffusion coefficient is not quantified. Yet, it is clear enough that ground breaking inventions, which both inventions are for sure,  still must be given an entirely different value from a business point of view.

Concluding: It is wise to integrate some educated guesses about the coefficient of diffusion of your innovation into the decision to pursue patent protection or not.

In future patent tips there will be more information about the quantification of the innovation diffusion coefficient. Stay tuned!


Hendrik de Lange
Dutch and European patent attorney
http://www.octrooifabriek.nl

Patent tip: Patenting requires a business strategy!

Should you file a patent for your invention? Well it depends.

As private inventor, filing a patent is actually only sensible if you want to start a business around your invention. This business can be a producing company, a service company, a patent licensing company or any combination of these three.

If starting a business is not your cup of tea, aiming for a patent is not a wise strategy.

Of course, there are more reasons for aiming for patent protection, in future patent tips there will be more information about the reasons to obtain a patent portfolio.


Hendrik de Lange
Dutch and European patent attorney
http://www.octrooifabriek.nl

Patent tip: Make use of the priority year!

Within a year after the date of filing a first patent application, for the same invention, another patent application can be filed, claiming the first date of filing. The second application can be filed in the same but also in a different country.

This can provide much needed flexibility in choice of the geographical coverage of the innovation.

Therefore, make use of this special year! Ask your patent attorney, he or she can explain in more detail the details about claiming priority.

Sources: 

Paris convention Article 4A1 and Article 4C1 http://www.wipo.int/treaties/en/text.jsp?file_id=288514

Patent tip: Can knowhow be patented?

Once specific knowledge is patented, it cannot be considered knowhow anymore. At first instance this appears strange, yet knowhow is defined as undisclosed, secret information, that bears value because of its secrecy.

Based on the definitions of knowhow in TRIPS and EUR 772/2004:

Because patents are by there nature public, and knowhow is per definition secret, once a patent application with knowhow is published, the knowhow instantaneously becomes generally available knowledge.

summarizing: Knowhow can be patented, yet patented knowhow does not exist....



Hendrik de Lange
Dutch and European patent attorney
Octrooifabriek: http://www.octrooifabriek.nl

Sources:

IE-forum notes on verdict C/I 3/574449 / I-LA ZA 14-1008:
http://www.ie-forum.nl/?//Secret+proprietary+knowledge+valt+onder+de+definitie+knowhow////34249/ 

TRIPS 7:39 protection of undisclosed information:
https://www.wto.org/english/docs_e/legal_e/27-trips_04d_e.htm#7

EUR 772/2004 A1(i)i-III
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004R0772:EN:HTML

Patent tip: Think inside the box!

This may be a remarkable tip, but thinking inside the box may provide excellent information about your specific field of technology. It can be a source of inspiration and provides information on what other players do in your field. But how to define the box you are in and where to look "inside your box"?

IPC, an example

Well a good definition of the box you are in, is the technical class of the International Classification System. Here is an example:

In this specific class (on a subgroup level) there are some 800 publications, mostly patent documents. All very relevant to one very specific technical field, in this case membrane cleaning with moveable bodies.

The specific subgroup B01D65/04 is one of the approximately 65 000 subgroups available for search. Each related to its own technical field, or to its own "box".

The classification of patent document adds incredible powerful additional information, which can provide inspiration in any field of technology, Make use of it, it is all freely available and provided by the European Patent Office. You will find the relevant link below.


Hendrik de Lange
Dutch and European Patent Attorney
+31 (0) 641 74 686

Sources:

Link with information about the international classification system: https://www.epo.org/searching/essentials/classification/ipc-reform.html

Link to a keyword search mask in the classes of the IPC
http://worldwide.espacenet.com/classification?locale=en_EP

Patent tip: Be inspired by the patent databases!

Databases 

One of the magnificent search tools for patent information is Espacenet. Espacenet is a database made available for free by the European patent office. Here, in a neatly ordered fashion you can find in about 64 000 classes about 90 000 000 patent documents.

This is a truly wonderful source of inspiration, that is why I would like to share this item with you.

Example

For example you can keyword search in the classes, and can select the most appropriate class for your innovation. In this class, you can just start to wander around through the relevant documents. Please have a look at the second link herein below for a direct entry into 90 million patent documents, and:

Be inspired!


If you have tried various things and you get stuck, please don't hesitate giving me a call or texting me a message:

Hendrik de Lange
Dutch and European patent attorney
+31 (0) 6 481 74 686

Sources: 

Link to the keyword search field in the documents of Espacenet: http://worldwide.espacenet.com/advancedSearch?locale=en_EP

Link to the keyword search field in the classes of Espacenet:
http://worldwide.espacenet.com/classification?locale=en_EP

Patent tip: Keep your stuff secret!

One of the requirements in patent law, in order to get a patent and the desired monopoly on your technology, is that the invention must be new.

A single sell of the product, wherein the invention is integrated is sufficient to take away this so called novelty and thus is killing the chances on getting a valid monopoly. 

So keep your stuff secret! Secret at least till you have made a sensible decision on obtaining protection. If you have to disclose details to suppliers or potential clients, have them sign an NDA!

Hendrik de Lange
Dutch and European patent attorney
+31 (0) 6 481 74 686
http://www.octrooifabriek.nl

Patent tip: Recognize the invention!

Search for "pling-effects"

The best way to describe an invention is by the "pling-effect". "Pling-effects" occur when a problem occurs that is difficult  to solve. Most of these problems come about, because one or more counteracting forces prohibit an aimed effect to occur.

For instance the situation:

My son wants to organize a birthday party on the freshly discovered earthy planet Kepler 452b.

problem:

Even when travelling the speed of light, it is about 1400 years travelling. So the guests will likely arrive late, probably too late.

So the problem cannot be easily solved, until someone reaches a "pling-moment", which in this case is daunting to say the least.

Occurrence of "pling-effects"

Mostly the "pling-moment" occurs somewhere distant from the environment where the problem originally occurred. Like during relaxing, sport, showering, sleep or having a beer with close friends. It is the sudden light bulb, the creation of a new insight, a somehow higher level of knowledge than before that defines a "pling-moment".

The true master of all examples of the "pling-effect" is the Eureka moment of Archimedes in his bath tub, when he had to investigate the gold content of a crown of the that time reigning king. The excitement when the insight has reached apparently was so great that he danced naked in the streets of joy.

"Pling-effects" are often extremely rewarding, and mostly the solution appears dead simple once it has appeared in the mind. Here the danger of downgrading the invention is likely to occur, especially by people with creative technical minds. Questions like: is that so special? or remarks like everyone could have come up with this are detrimental for the recognition of inventions.

Remember, this is always a hindsight view! Beforehand, before the "pling-effect", no-one would say the solution is easy, because, before the "pling-effect", there was none to judge in the first place.

Mostly, the hard and often frustrating work comes in implementing the "pling-effect" in a working prototype. Mostly it is difficult, because the implementation is never performed before. It is like stepping into the unknown and see if it works out.

So whenever a "pling-moment" occurs, a potentially patent worthy invention may have been generated, out of thin air! This much explains the word invention, as if the wind has blown something into a mind.

Summarizing

- "Pling-effects" indicate an invention.
- "Pling-effects" occur at very distinct and memorizable moments, mostly in a relaxed state of mind.
- "Pling-effects" are giving a sense of excitement.
- "Pling-effects" are mostly very simple in hindsight.
- "Pling-effects" are by nature difficult to implement, because nobody has done it before, ever.


When is such "pling-effect" patent worthy?  You will read more about the patent requirements in one of my future patent tips!

I wish you happy inventing!

Hendrik de Lange
Dutch and European patent attorney
http://www.octrooifabriek.nl

Sources:

https://en.wikipedia.org/wiki/Archimedes

Patent tip: Get a patent or two and keep your Innovatiebox!

It was expected and it will be implemented in 2017; the end of the WBSO declaration entry for the innovation box (the 5% tax regime on company profits in stead of 25%). Only a patent is considered sufficient to be able to receive the reduction, aimed at stimulating the innovativeness of enterprises.

Well be aware, a patent may not even be sufficient to repair this. A negative written opinion, issued by the Dutch patent office may well annihilate your chances on getting into the innovation box regime. Dutch tax inspectors are now more and more studying in detail the files at the Dutch patent office.  They are not any longer accepting the reduced tax regime under the innovation box, if the written opinion is negative about the patentability of the invention.

And believe me, most written opinions are negative.....

Worse still, there is nothing to do to repair this negative opinion in a patent application. This is because the written opinion is only an opinion, not an appealable decision.

How to repair this? 

Well by filing a second application, with much more restricted, narrow claims, such that it is almost impossible for the patent examiner in question to issue a negative written opinion on this second patent application. 

Are you interested in how to strategically best cope with this issue and get the exact details on how to deal with it, please send me an email or give me a call, I will be happy to advice you. 

Thank you for reading my blog, 

Hendrik de Lange
Dutch and European Patent attorney
cellphone: +31 6 481 74 686

Patent tip: indicate your protection!

Products with clear indications of protection get less copied!

It is always advisable to put a patent number or a patent pending on your products, once a patent application has been filed.

Why? 

It educates the public that there is protection applied for or that there is a protective right in force. More importantly, it warns potential infringers to be cautious about copying. Products with clear protection indications are less likely to be copied, and lawsuits against infringers are more likely to succeed.

Example

The Legaignoux brothers are the inventors of the inflatable kites, which was a true revolution in water sports. These inflatable kites could be relaunched from water, without the danger of loosing the kite, or worse the danger of loosing your life altogether. In 1985 they have filed for a patent and after their patent being filed and granted, the inventors have searched for and found numerous licensees.

Figures from the EP0202271 European Patent for tube  kites.

The first licensee, Neil Pride, who was selling the kites under the Wipika brand took a license only in 1997, 12 years after the first patent has been filed. The producers Naish and North followed soon, later most brands followed in licensing this technology [1,2].

Patent marking on one of the original R3, one of the early Naish kites, designed for kitesurfing.

Since then more than a million kites with the Legaignoux technology have been sold globally. Quite a success!

Number of tube-kites sold annually, the arrows indicate the start and expiry of the
first patent on tube-kites. the Numbers originate from various sources [3,4]

Without protecting and licensing, and without informing potential competitors, the two brothers and inventors would not have had such a profitable return on their truly lifetime investment. They did contribute to the world by introducing a new and exciting sport. And they created a global market now worth over 321 million US$ [4].

To all innovators: indicate the protection on your products well!

References and sources:

[1] About the inflatable kite: http://inflatablekite.com

[2] About the history of kite surfing: http://www.inmotionkitesurfing.com/2013/history-of-kiteboarding

[3] SBC Kiteboard: http://fksa.org/showthread.php?p=50397
http://www.sbckiteboard.com/news_article?news_id=2206 [available as link only in the internet archive, numbers are still available]

[4] Wikipedia: https://en.wikipedia.org/wiki/Kitesurfing

are patents like nature?

There are some striking similarities between patents and nature.

If we look at the human genome for instance, it comprises some 3 billion (10^9) base pairs, coding for 1 billion amino acids. In the human genome some 33 000 genes have been distinguished, meaning that the average gene is about 30 000 characters in size. 

If we look at the size of a patent, it is about 6000 words on average. Since each word counts 5 characters on average, a patent is about 30 000 characters in size. 

This means, that an average gene equals an average patent in information size.

Is that a coincidence? probably not! A gene is a condensed way of providing sufficient information to code for a feature in nature, whereas a patent is a condensed way of providing information for a feature in technology. Both in a gene and in a patent there is a sort of optimum, between on the one hand sufficiency of disclosure to work the invention (to work the gene) and on the other hand the over-expense of resources and effort. Apparently this optimum lies both in our genes and in our patents at a similar size of information load. How cool is that!

Furthermore, If we look for instance at the total human genome, about 3% is coding, in other words 97% of our DNA can be considered "junk". If we look at the portion of all patents being filed, that is commercially successful, this is also about 3%. So in patents as well 97% can be considered "junk". 

Finally, if we consider those genes or patents that belong to this so called successful 3%, there is a typical growth curve that is again very much alike.  

So patents are very similar to nature! 

References to sources of information will follow soon!

Patent tip:The next innovation to die

Innovations come and go. More adequately innovations come by foot and leave by horse, much like trust. An illustrative example is the development of wind powered mechanics in the Netherlands. From the dutch website molendatabase.nl, I've distilled the number of active windmills throughout eight centuries. Eight centuries! Here is what has happened:

Windmill technology was virtually wiped out first by steam engines, later on by internal combustion engines and electrically driven engines. An entire technology, which evolved and developed in seven centuries has -within one century- become entirely obsolete*.

Steam engines themselves underwent the same fate, as the following image illustrates:

So who is next?

Well, if we see the rapid change in electrical energy generation, as is illustrated by a pair of simple S-curve fits on historic data of the global electrical energy consumption (blue) and the globally installed solar PV peak power (orange):

It is no surprise that traditional electricity generation is facing the same fate windmills and steam engines have experienced. Only this time it will be faster and more severe! Within the coming nine years, most electricity power stations as we know them will be either demolished, or kept as a museum for educational and nostalgic values. If you are aiming to invest, shorting traditional electrical power is likely to be one of the best investment options ever.

This is a transformation of virtually biblical proportions, yet, no-one seems to grasp.

I can only say: enjoy the show, it is happening RIGHT NOW!





Note:

The number of windmills in the Netherlands is rising again. Next to about 1000 traditional windmills, about 700 wind generators are currently installed. I will address a blog to this alternative clean power generation technology.


Sources:

www.molendatabase.nl

http://octrooifabriek.blogspot.nl/2013/01/betting-on-solar-power.html

Historical USA Sensus data

Holiday greetings

Well, we like to have fun!

Brick Chick, our aeronautical engineer!

Never stop playing, have a nice Holiday!!!!!

Hendrik de Lange

Patent tip:Patents contribute to prosperity

What would be the effect on the economy of abolishing the entire patent system? 

Well in order to get an answer, we have to look in to the quite amazing history of the Dutch patent system. From 1869 to 1912 there was none. Indeed, the entire Dutch patent system has been abolished for 43 years. 

During this patent absent era, Dutch economy did not do too well. At the start of this era, Holland was leading in wealth measured in gross domestic product per capita, when compared to its closest neighbors. During the patent absent era, Holland fell back to lagging in wealth. Only in the mid 1920ties, after a reinstated patent law in 1912, Holland grew back to a wealth similar to that of Belgium and Germany.  

Those advocating abolishment of the patent systems, please study this historical statistical information well!  

Unitary patent; To opt in or not to opt in that is the question.

The new unitary patent renewal fee schedule is in the making. The most likely proposal is the top 4 country model, providing a 75% reduction of the annuity fees. That is good news! 

Innovation better than sex?

For the celebration of the fourth anniversary of my company, I gave a little speech. It is about innovation and the comparison between innovation and sex, concluding that... well have a look at the video and see for yourself. Please post some comments if you like, don't be too harsh on me it is my first video presentation. Thank you for watching!

Hendrik de Lange
Patent attorney at Octrooifabriek B.V.

Patents in Kenya

The reason I am looking at the Kenyan patent protection is twofold. The first reason is that one of my clients is interested in patent protection in various African coastal states. He asked my opinion on the quality of various African Nation's patent systems. Honestly, I had no clue. My client is especially interested in the possibilities of enforcement of patents. The second reason was a more personal one, I simply am very curious about the patent protection anywhere, and to see how my colleagues around the globe master their profession.

Kenyan Industrial Property Act 2001

After a quick inspection of the legal patent system in force in Kenya, the Kenyan Industrial Property Act of 2001, in my view some remarkable issues arise:

It appears that a non-usus or non-working automatic license is not incorporated in the legal framework, however any person may apply to the Tribunal for a compulsory license four years after the filing date or three years after the date of the grant of the patent, in order to exploit the patented invention on the grounds that a market for the patented invention is not being supplied on reasonable terms in Kenya. This means that patent trolls, by not working their inventions and by merely sitting on their Kenyan patents, could not potentially block technological progress in Kenya. This is a regime, very much unlike the USA practice.

Further, at the discretion of the Managing Director, there are 33 specified clauses on the basis of which a license may be exempted from registration. These are actually clauses, that are prohibited in the license contract meaning that such clauses would have to be deleted before a license contract is allowed to be registered. This appears to be a more licensee friendly regime, most provisions are instituted to protect domestic Kenyan licensees.

In the Kenyan Patent Act, The term "Technovation" is used for Kenyan resident employee inventions and provide for an employee benefit from commercialization of patented technology. Thus, in the spirit of German Patent law, there is a sort of an Arbeitnehmer-Erfinder-Gesetz in place. Contrary to the German system however, it is not specified on which basis, e.g. turn over based or profit based, the "Technovator" receives his remuneration.

Kenyan residents are obliged to file in Kenya first, much like the French patent system.

Kaplan & Stratton

Upon my request, I was invited at the office of Kaplan and Stratton, one of the leading law firms in Kenya, dealing with Intellectual Property. At the office in Nairobi, I was hosted and warmly welcomed by senior partner in the patent litigation field, Mr. Patrick Ikimire and senior partner in the trademark and design field, Mr. Peter Hime, who gave me a thorough insight in the intellectual property landscape of Kenya.

The office building of Kaplan and Stratton,

Williamson House, 4th Ngong Avenue, Nairobi

Mr. Ikimire explained in detail the actions to take in applying for an injunction. In Kenya, there are two main routes to stop patent infringement or actually two courts to turn to in case of a patent dispute. An injunction can be applied for either at the Industrial Cooperation Tribunal, which deals with industrial disputes or at the High Court, which is competent in judging all civil disputes. The advantages of the first route is that this court is more specialized in industrial matters, however the judges, at the moment, have not been officially installed in their positions, meaning that pending cases are temporarily suspended. On the other hand, in the High Court, the judges are in permanent duty and will deal with the case.

Thus it appears that in Kenya, forum shopping is possible, especially once the Industrial Tribunal members are again officially installed. For patent holders, this is good news, where the first forum does have the power to revoke and invalidate patents, the High Court has not.

An infringement procedure to the merits takes about 3 years, however an ex-parte injunction is available in about two weeks, where judges may request a security deposit for potential irreparable counter party damages.

The number of infringement cases that actually appear in front of a judge in Kenya appears to be so limited, that there were no statistics known of. In last twenty years according to Mr. Ikimire were most likely no infringement verdicts issued.

Activity of Kenya's Patent Agents in published patent filings in 2014 [5]

KIPI

Further in my search I requested an interview at the Kenyan Industrial Property Institute, the KIPI. Here I was hosted and kindly welcomed by Ag. Managing Director Mr. Sylvance Sange and Chief Patent Examiner Mr. David Njuguna. It was a pleasure to learn that both gentlemen, like myself started their IP careers as Patent Examiner!

The vision of the KIPI is clearly written on the entrance sign: Be a Leader in Promotion of Industrial Property for Wealth Creation. I couldn't agree more, creating wealth by promoting Industrial property. Universally applicable I would say!

Mr Njuguna explained that unlike the Dutch filing system, the KIPI has an substantive examination procedure in place, where a staff of 13 examiners work on an ever increasing number of applications.

The Road mark of the KIPI at Popo Road, off Mombasa Road South "C"
Weights and Measures Complex

Further, he proudly presented me the filing figures of patents in Kenya and showed a fast growth of resident patent filings, where non resident patent filings remained more or less stable at relative modest numbers of about 1 to 8 filings a year.

last 15 years the number of applications by Kenyan residents increased 7 fold

The PCT National phase applications showed a more mixed image, where the 2013 and 2014 figures show a downturn in national phase entries. These numbers reflect the dip in international filings in 2009-2010 due to the global economical downturn. This effect of reduced PCT filings typically only resonates in the national phase some two and a half year later. Kenya applies for the PCT chapter I and chapter II national phase entries of international application a time limit of 30 months [2]. In view of the strong recovery in global PCT filing statistics, the number of PCT national phase applications in Kenya in 2015 are likely to show an increase of 20-25% [3].

The number of PCT applications show a dip, due to the 2009 economic downturn 

Finally, from WIPO statistics, is shows that the number of PCT applications filed by Kenyan residents is rapidly increasing, from on average 1 application in the 1990ies to about 180 in 2013 [4].

Conclusions

When studying these statistics, it can only be concluded that both the residential Kenyan IP law firms and the KIPI have done an excellent job in promoting and progressing the domestic IP engine, which without any doubt is a strong booster of the nations wealth!

In Kenyan licensing practice, it is quite essential to consult a local patent attorney or residential legal specialist, there are too much national peculiarities in the legal framework with respect to licensing, that may affect a proper license agreement from being legally binding or from being registered.

For patent holders I can conclude that Kenyan patents are worth filing and pursuing!

Rest me to thank the above stated gentlemen for their open and sharing minds and welcoming hospitality and the tremendous efforts they have exerted in progressing the Intellectual Property Scope, of which proof is clearly shown in the statistics.

Thank you very much!


Hendrik de Lange
Dutch  and European Patent Attorney

References and sources:

[1] The Kenyan Industrial Property act of 2001: http://www.kipi.go.ke/images/docs/ipact2001.pdf

[2] PCT National phase in Kenya http://www.wipo.int/pct/guide/en/gdvol2/annexes/ke.pdf

[3] IP Kitten PCT filing statistics http://ipkitten.blogspot.nl/2013/03/a-first-look-at-wipos-statistics-on-pct.html

[4] WIPO statistics: http://ipstats.wipo.int/ipstatv2/editIpsSearchForm.htm?tab=patent

[5] KIPI IP Journal http://www.kipi.go.ke/index.php/past-ip-journals