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LAMMA 2021
25 May 2021
How to protect an ag innovation against possible theft or infringement
As a Lamma Award judge and patent expert, Dr Tim Fray is well placed when it comes to the often complex world of protecting inventions and ideas.
Here, he shares his thoughts on how to maximise the potential of intellectual property...
Innovation and branding are at the forefront of manufacturers’ minds, whether they are looking to protect their existing innovations or show off their rights to their competitors.
But how can a company or inventor protect their innovations and ideas against possible theft or infringement? And why should they?
Dr Tim Fray, a patent expert at Loven Patents and Trademarks, says: “Patents, along with registered designs, trademarks and copyright, come under the general heading of intellectual property [IP].
“Patents protect the functionality in a product or method, registered designs protect the appearance of something, trademarks protect your brand and copyright protects any original artistic or literary work, including software.
“There are also unregistered rights, such as unregistered designs, trade secrets and ‘know-how’.”
Innovation
A perfect example of patents in action can be found at the various trade shows. The start of this year saw the Lamma Show move to its new home at the National Exhibition Centre, Birmingham.
As part of the judging committee, Dr Fray was tasked with reviewing entrants for the show’s Innovation Awards.
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He says: "There was a vasy array of technologies present throughout the show. In fact, it was hard to find a stand which did not have the words ‘patented’ or ‘registered design’ marked somewhere on the exhibitor’s products, as well as a number instances of ‘®’, indicating the owner has secured a registered trademark for their brand.
“What Lamma actually reinforced is that farming is on the cusp of a technological revolution focused on robotics and automation which will change the way the public sees farming practice and the landscape around us.”
As a result, protecting market share in this rapidly changing industry is now more important than ever, he says. And with this comes the possibility of treading, perhaps unwittingly, on someone else’s toes.
Approval
Loven Patents and Trademarks specialises in agricultural IP.
Dr Fray says: “Many agri-based businesses will now have a whole raft of patents, trademarks, designs and unregistered rights, all in various stages of approval and with overlapping scope, when once they would have ignored IP altogether.
“Nevertheless, there remains some reticence on the part of farmers and traditional farm machinery manufacturers to pursue protection for their innovations. In many cases they are put off by the extensive legal fees required to defend a case in court.
"And in some cases they produce new devices at a rate which outpaces the time taken to obtain granted protection.”
Dr Fray details what can be done...
INTELLECTUAL PROPERTY AS A BUSINESS TOOL
FUNDAMENTALLY, intellectual property (IP) is a right which enables the holder to stop others from copying. IP is therefore a primary business tool, says Dr Fray.
“I conducted a ‘straw’ poll at this year’s Lamma and found 75 per cent of exhibitors had been involved in a dispute regarding their innovations or brands.”
As a secondary tool, IP can be thought of as something more favourable to a business, says Dr Fray. Using JCB as an example, like many manufacturers it has an instantly recognisable logo, protected as a registered trademark, and an instantly recognisable shape – a registered design.
Tangible
Registered designs and trademarks are key to helping their owners protect their market share, adds Dr Fray, and these are tangible assets which give the owners a basis for demanding an infringer emerging in the same market place to take out a licence.
“Court proceedings are indeed expensive, but 95 per cent of cases never get to court. Licence settlements are commonplace and this is the crux of the matter.
“Intellectual property is not an onerous and expensive folly merely for super big businesses, but actually a simple business tool.
“It is a tool for negotiating an agreement, whether it be an infringer/potential licensee, a supplier or an investor. In your business, what do you think is worth more, your physical assets or your IP assets?”
DO NOT GET CAUGHT OUT
INDEED ‘Old MacDonald’ was a true innovator. As such, much of today’s technology could be perceived as a reinvention of older products, says Dr Fray.
“Before launching a product or pursuing patent protection it is important to conduct appropriate searching. Do you have freedom to operate? Is your idea new?
“Prior searching, particularly with respect to trademarks, will also reduce the chances of incurring high costs later in the application stages – not something you want after you have settled on a brand with expensive graphic design and advertising material.
Concept
“With registered designs, remember it is about what it looks like. The originality of the concept and how clever it is bears no weight in an argument about registered designs.
“Some of you may be aware of the Trunkis which children are dragged around on in airport terminals these days.
“The creator of the Trunki claimed the Kiddee Case infringed its design rights. Instead of concentrating on what the two cases looked like, Trunki argued the Kiddee Case had infringed on the general concept of carrying around children on wheeled cases which looked like animals.
“The court found the two formed a ‘different overall impression on the informed user’ and Trunki lost its battle.”
Tax burden
Overall, IP is a business tool which you can use as a source of revenue and reduce your tax burden, says Dr Fray.
FINANCIAL BENEFITS OF INTELLECTUAL PROPERTY
BUILDING on intellectual property as a business tool, a number of companies have exploited HMRC’s Patent Box scheme.
Dr Fray says: “Patent Box enables companies to apply a lower rate of Corporation Tax [10 per cent] to profits earned from its patented inventions.”
A 2018 HMRC report showed 560 companies in the UK used Patent Box (54.6 per cent of the total) in 2017. The total relief claimed as a result was £350 million.
"The idea of IP paying its way is something everyone would like to see more of, but as IP is often the result of extensive/costly research and development, there are other benefits available from the HMRC. Research and development relief is currently claimable for anyone involved in research and development, and this has a broad interpretation.
“You have to have developed or attempted to develop something yourself. For example, does your business have to resolve technical issues, such as component tolerances or stress testing?
“Does your business work with new materials or new techniques for combining materials together?
“If you answered yes to any of these, then you are potentially eligible for claiming tax relief.
“The uptake of research and development tax relief by agricultural machinery manufacturing firms is relatively high, but are you claiming?”
Got an innovation for the Lamma Awards?
LAMMA Show is at the National Exhibition Centre, Birmingham, again next year (January 7-8), and will once more play host to its long-standing Innovation Awards.
Open to exhibitors of the Lamma Show, the awards will remain free to enter. The deadline for entries is November 19.
The awards champion agricultural machinery, equipment and services innovations which are mindful in their impact on the environment, sustainable in concept, practical in use and progressive in their design and safety features.
An independent judging panel of industry experts will review entries based on set criteria, with winners being announced in December.
MORE INFORMATION
To enter, go to www.lammashow.com/innovation-awards
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