Green means go…?
The drive for sustainability across all industries is constantly yielding new technologies. However, it is not only in brand new ideas that businesses are striving to make progress. The improvement and optimisation of existing technologies is critical to making advancements in sustainability. This presents further opportunities for generating Intellectual Property that can add significant value to a business.
Patents can be obtained for any invention, whether it be a system, device, product, process or use of a product, which can be shown to be novel and to demonstrate an inventive step. The latter requirement is met if the invention overcomes a technical problem or offers a technical advantage in a 'non-obvious' way. However, this is not to be confused with complexity. Relatively small changes to a product or process to improve efficiency, for example, may well be patentable inventions.
It is inevitable, therefore, that as businesses develop new products and processes (or modify existing ones) with a view to making advancements in sustainability, a whole range of patentable inventions will arise.
This is reflected in the 'Green Channel' scheme offered by the UK Intellectual Property Office (UKIPO), which allows the examination of patent applications relating to environmentally friendly inventions to be accelerated.
The UKIPO does not set a high bar for entry into the scheme, merely requiring the invention to have some kind of environmental benefit. This will be clear in some cases, for example if the invention relates to green technology such as solar panels or wind turbines. However, the UKIPO also acknowledges that an improvement in the efficiency in a manufacturing process would also qualify. This apparently 'low bar' for acceptance into the Green Channel reflects the importance of making improvements across all areas of industry.
Unsurprisingly, interest in the Green Channel scheme appears to be increasing, which is likely to be a reflection of the increase in the number of environmentally conscious patent applications being filed in general. The chart below shows the number of Green Channel requests filed per year since the inception of the scheme in 2009. This is, of course, only a snapshot of patent applications relating to green technology; there are several reasons why applicants choose not to accelerate their patent applications, which we discuss below.
So, with the Green Channel providing a useful tool for accelerating a patent application, it is important to consider whether acceleration is the right strategy for you.
Advantages to acceleration
With accelerated processing, it is possible to obtain a granted patent in as little one to two years, compared to the normal timescale of around three to four years. The Green Channel can therefore be an extremely effective tool to fast-track grant of a patent in the UK. Acceleration is available for all inventions, regardless of its environmental credentials, however normally the applicant is required to provide commercial reasons for jumping the queue. The Green Channel offers accelerated examination for patent applications relating to inventions having an environmental benefit, without having to provide a commercial reason.
Whilst not always the best course of action, acceleration of the patent application procedure in the UK can offer businesses some strategic advantages and is therefore worth consideration.
Obtaining a fast grant can help attract and secure investment or negotiate licenses on favourable terms, which may be particularly appealing to start-ups and SMEs trying to get their innovative technology to market or explore new revenue streams.
Green Channel processing can also be used in combination with other UK Government schemes to offer significant financial incentives. The UK Patent Box scheme, for instance, offers a reduced rate of corporation tax of 10% on income derived from exploiting patented inventions (now even more significant in light of the increase in the main rate of corporation tax to 25% in 2023). This means, by way of example, that a business that has made a patentable development on its products or processes to improve efficiency could benefit from the reduced rate of corporation tax, within a relatively short timescale if the Green Channel is used. It is likely that a large number of businesses that could qualify for such tax relief by virtue of their existing research and development are missing out on this significant opportunity.
A granted patent also allows the owner to take action against a known infringer or may deter potential infringers in the UK. Applicants wishing to pursue protection for their inventions in other countries may also feel more confident in investing in foreign applications if the UK application has already been granted, or at least has a positive indication of patentability from the UKIPO.
The UKIPO also has cooperative agreements with other patent offices arounds the world, allowing the application procedure to be accelerated in other countries on the basis of a positive indication of patentability in the UK. Whilst this does not guarantee grant elsewhere, it can nevertheless accelerate procedure in other countries, helping to speed up the development of a global patent portfolio, if desired.
Disadvantages to acceleration
It is important to note that, in many circumstances, it may not be desirable to accelerate the application process. Maintaining a pending application can be useful in a competitive space, since this provides potential for tailoring the scope of protection towards potential infringements.
Making the most of accelerated processing also requires early publication of a patent application, meaning that competitors may become aware of the application (and the underlying invention) sooner. This is particularly the case for Green Channel applications, which can be readily identified using the UKIPO's One IPO Search Tool.
Additionally, acceleration does not mean that any stages of the application procedure are skipped. Each application still undergoes rigorous examination, only within shortened timescales. This means that the costs are brought forward, instead of being spread over a period of a few years.
It is therefore worth carefully considering whether acceleration of the application procedure is appropriate for your commercial interests. Importantly, however, the Green Channel allows the applicant to choose which stages of the procedure to accelerate; it is not necessary to accelerate the whole procedure. It is therefore possible to tailor the accelerated processing to meet your specific needs, whilst mitigating some of the disadvantages that may be associated with acceleration.
In summary, use of the Green Channel to accelerate protection for environmentally conscious innovations can be a powerful tool that should be considered as part of a broader IP strategy. If you are starting out on this journey, we would welcome the opportunity to have an initial discussion with you, with no obligation.