11 January 2011

IP and Business Consultants

I had the misfortune of having my judgement questioned by a so-called business adviser. He was particularly interested in why I had bothered to file a patent application for a particular client of his when "it did not appear that the invention would qualify even for an innovation patent". I immediately went on to the offensive and asked whether or not he knew what it was that would allow an invention to "qualify" for an innovation patent.

Given that an innovation patent will always be granted subject to passing a formalities test, I was already using inaccurate language. However, I thought it was appropriate given the level of understanding held by this particular business adviser. In any event, it appeared that he was completely ignorant of the test for an "innovative step". For a discussion in connection with this requirement, see my post of 2 July 2009.

This altercation was a stark reminder of the need to select an appropriate expert. Patents can be extremely complicated, particularly when one is attempting to understand the rather nebulous principles of inventive and innovative steps. After all, questions concerning these principles regularly find themselves presented in the highest court of the land. For a business consultant to provide any sort of opinion as to whether or not an invention is patentable would be unethical to say the least, provided of course the business consultant is not an ex-patent attorney.

The business adviser’s call was made on the basis of an Internet search that he'd carried out. The result he so proudly presented to me had the physical appearance of a preferred example of the invention described in the patent application in question. Based on that he was prepared to advise his client that he thought that the invention was not patentable. Sadly, business advisers are not bound by the same code of ethics that bind us patent attorneys.

So, if you're sitting down with a business adviser and he or she begins prattling on about patents, please make sure that you check his or her credentials.

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