About Andrew Johnston: Andrew is a part-qualified trainee patent attorney, with experience in research and with patenting a wide range of technologies in different sectors. Andrew holds a first class MSci in physics from Imperial College London, spent time studying in Madrid, and earned a doctorate in biochemistry from the University of Oxford.
In an early episode of the BBC’s Dragons’ Den, first broadcast in 2010, an argument broke out over the entrepreneurs’ patent, with Duncan Bannatyne insisting: “You can’t possibly have a patent for that!” A clip from the episode is available here: https://www.youtube.com/watch?v=EUVXwMTXs1E.
In this article, trainee patent attorney Andrew Johnston looks at some of the issues raised in this clip pertaining to patents. Foremost among the lessons to be learnt from this clip is that that the protection conferred by a patent is defined by the claims, and having a broad scope of protection can be a particularly powerful tool for entrepreneurs seeking investment.
Background
Entrepreneurs Stuart Archbold and Andrew Leslie from Shopbox Systems Ltd entered the Den asking for an investment of £250,000 in their business, in return for ten percent equity. The entrepreneurs presented their product, which was a secure, temperature-controlled container for receiving delivery of groceries at a property when the owner is absent.
Patents protect how something works
Seven minutes and 48 seconds into the clip, Andrew Leslie informed the Dragons that their product is patented. As alluded to by Andrew, a patent protects how a product works (unlike design rights, which protect a product’s appearance). Therefore, in response to Duncan’s assertion that competitors will devise a product that does the “same job”, Stuart was correct that a granted patent can be enforced to stop competitors from commercialising products that work in the same way.
The scope of protection is defined by the claims
Duncan appeared incredulous that the entrepreneurs’ patent covered a secure, temperature-controlled container for receiving delivery of groceries. When presented with the entrepreneurs’ patent, Duncan maintained his stance. However, in reaching this conclusion, Duncan appeared to rely on the patent’s title, whereas the scope of protection of a patent is defined by the claims of the patent.
Moreover, Duncan argued that the patent covered a “container for goods”. If the claims of the patent had specified such a container, the scope of protection would have been even broader. In other words, a container for goods includes a variety of types of containers, as well as a secure, temperature-controlled container. If Duncan’s analysis was correct, the scope of protection would have been more favourable than the entrepreneurs argued.
While Duncan summarised his views by describing the patent as a “worthless piece of paper”, Peter Jones’ views differed. His analysis, which appeared to include a more thorough reading of the patent than Duncan, was that the patent protected a secured, temperature-controlled container. Although ultimately no deal took place, on the basis of a granted patent for a secured, temperature-controlled container, Peter offered to invest £1 million.
Prior art is used to determine whether something is patentable
At 12 minutes and 20 seconds, Peter Jones stated that the existence of the patent meant that the entrepreneurs had some prior art. This use of the term “prior art” is incorrect. Prior art refers to evidence that an invention is already known. Prior art is used by patent offices to determine whether an invention is original and, hence, whether it is patentable.
