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Considerations that might help avoid infringing third party IP protection

A startup founder and a patent attorney share their experience and advice

 
 
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Ideas for new tech ventures come from many sources. For Melissa Snover, founder of health and food tech startup Remedy Health, it was the inconvenience and occasional embarrassment of carrying a plastic bag of rattling vitamin supplements around with her whenever she left home.

An incident at an airport when such a bag burst open at a security gate left her picking up scattered vitamins from the floor and thinking that there must be a better way.

Remedy Health was subsequently set up May 2019 with its consumer brand, Nourished, launched November 2019.

Nourished uses a patented 3D printing technology to produce bespoke gummy snacks containing a specific combination of vitamins and nutrients.

Another division of the business, Scripted, is also using advanced technology to personalise medicines in live patient care environments and clinical trials.

Respecting existing IP

Snover and her team have been careful not to infringe the intellectual property of others when devising their products and processes.

“The main way is by doing searches of existing patents. Any good patent attorney will be able to do this for you,” she explains. “You can begin by looking online to see if anybody has come up with any similar ideas in the public domain.” Alternatively a commonly used self-search tool is Espacenet, a free database of patents run by the European Patent Office.

Even after going through the search process, Snover says she has faced numerous challenges from patent examiners when making patent applications: “We had to re-write the scope on them and make the definitive declarations much clearer. We had to make them better researched, better written and more strategically presented.”
 

Business models can help define IP

Jim Boff, Partner at patent and trademark attorney Phillips & Leigh explains that the starting point for tech startups is examining their business model.

“There is a distinction between a business using off-the-shelf, existing IT equipment or software in a new context and one that comes up with something really radical,” he says.

“The off-the-shelf option makes it is less likely for a firm to get protection – but also less likely that there is going to be something standing in their way. All they need to do is ensure that they have the correct licences from patent holders for the existing software tools that they are using. The more you are doing something which is above and beyond the norm, the more chance you have of getting a patent – but equally there is a greater chance that someone else has had the same idea at some point and has sought a patent for it.”

Boff, like Snover, encourages firms to start the process by doing their own checks but stresses that patent searching can be complex. “Some firms don’t realise that if you are doing ABCD and there is a patent out there for C then you are stopped from doing the whole lot. If you keep going, you can be sued and maybe lose your whole business,” he says.

“The other big mistake is finding a patent which stops you but not realising that the patent wasn’t granted, is lapsed or long dead, or has restricted geographical protection. If there is a patent in the way or you get into trouble, then look at taking a licence from the patent holder. It is hard to work out who has what relative rights and professional expertise is important.”

Snover adds that startup tech firms should not automatically believe they need to patent or trademark every bit of innovation. “A patent can protect you, but you are giving a roadmap to others to reverse engineer your design. People can try and get around patents by changing just one small thing. If you keep something a total secret, it may not give you the protection if someone invents the exact same thing independently, but you don’t give them any clues either.”
 

IP patents to protect your startup

One of Remedy Health’s main growth drivers has been the uniqueness of its 3D printing technology. Snover says she has been busy devising new techniques since 2015 and the R&D process included creating confectionery products in-store for retailers.

She has, alongside Chief Technical Officer Martyn Catchpole, secured nine intellectual property patents, including ones related to material science in hydrocolloid bond manipulation. In layman’s terms it means that Remedy Health has found a way to break a hydrocolloid bond and re-set it.

“This was previously thought to be impossible,” says Snover. “It is like when you make jelly for a trifle, you put hot water into the sachet and put it in the fridge. If you took it out and put it in the microwave and then put it back in the fridge it would not get solid again as you have broken the hydrocolloid bond. We have found a way to break and re-set those bonds, which is perfect for 3D printing.”

The business has a patent for creating a safe and hygienic food system for human consumption via 3D printing. There are also three hardware patents for 3D printers and trade secret protection on recipes, algorithms and coding.

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