Coming second in the patent filing 'race'

Patents are usually granted on a ‘first-to-file’ basis.  An illustration of the implications of this principle comes from a recent Opinion from the UK Intellectual Property Office as to whether the actions of OpenHydro Group Ltd in relation to a sea-bed mounted tidal turbine constitute infringing actions in relation to a patent belonging to Rotech Holdings Limited.

The Opinion notes that OpenHydro also has a patent which illustrates a sea-bed mounted tidal turbine.  However, the 11 April 2007 earliest filing date of that patent is four weeks later than the 14 March 2007 earliest filing date of Rotech’s patent.

Had OpenHydro only filed their patent application five weeks earlier, that application could potentially have invalidated Rotech’s patent and given the patent right to OpenHydro.  In the event, the Opinion concluded that OpenHydro infringed Rotech’s patent.

Earlier research at the Engineering Intellectual Property Research Unit confirms that there is greater risk of coming second in the patent ‘race’ in technical fields - such as green energy - in which there is a high rate of growth in the number of patent applications being filed.

This is but one of many ways of using intellectual property in engineering business.  You should of course seek professional advice on your own particular circumstances.