At Lunch & Law on 17 March 2016, Julia Bhend, Franz Probst and Roy Levy, together with external patent attorneys, examined the opportunities and risks of a so-called ‘no-patent strategy’. The focus was on the question of when it makes sense to deliberately forego patents or other intellectual property rights – and how companies can still protect their innovations.
Strategic considerations instead of automatism
Not every innovation necessarily has to be patented. A no-patent strategy can be useful if:
- technologies are short-lived or difficult to enforce,
- disclosure of the invention is not desired (e.g. secret know-how),
- open source or cooperation models are pursued,
- or the costs of registration and defence exceed the benefits.
In such cases, companies can rely on factual or contractual protection mechanisms.
Alternatives to property rights
The key instruments include:
- Confidentiality agreements (NDAs)
- Precisely worded contracts with confidentiality and non-competition clauses
- Technical protection measures (e.g. encryption, access restrictions)
- Documentation and evidence to secure temporal priorities
Case studies from practice have shown that a no-patent strategy only works if it is consciously planned and consistently implemented.
Conclusion
‘No strategy is not a strategy’ – foregoing intellectual property rights can be worthwhile, but requires clear objectives and legally sound measures. This is the only way to protect innovation without claiming traditional intellectual property rights.
The presentation given at the event can be viewed here.
