Farming looks mighty easy when your plough is a pencil and you’re a thousand miles from the corn field.
Dwight D. Eisenhower – 34th president of the United States
Life science based agritech organisations have peculiarities that affect how their intangible assets and value creation should be handled compared to other industries such as electronics and engineering.
Essentially, current IP legislation across the world does not lend itself to a conventional approach to IP protection and the strategies surrounding it.
Here are some of the issues that I have encountered, and the tactics adopted to mitigate them.
Development cycle & seasonality
Life science has a long development cycle, often one that goes beyond a typical patent application cycle, which usually requires a complete patent specification with full data to be filed within twelve months of an initial (provisional) patent application.
Further, experimental trials are often seasonal, with prime examples being calving and crop production. Therefore, if data points are missed during a trial, it can be another year or more until additional (and often expensive) trials can be run. Again, that is outside a typical patent cycle.
Ideally a patent specification contains sufficient data to support patent claims that are broad enough to meet the patentee’s commercial aspirations. To maximise data collection, patentees can consider conducting trials in their opposite hemisphere – effectively halving the time between trials, and using lessons learnt from the first trial to guide the second.
Another tactic is to have an IP strategist as part of the experimental design. They can give guidance as to what data will provide the best support for patent claims. This can mitigate the frustrating situation of asking a patent attorney to draft a patent specification only to be told to go back and get more data!
If it is not possible to get sufficient supporting data before a complete specification is due to be filed, then talk with your IP specialist. Careful management of publication and patent filings can help to maximise possible protection.
Open/public environments
Life Science experiments often need to be conducted in public environments (such as farms) and therefore are more likely to risk being exposed publicly – potentially destroying novelty for patent purposes or alerting competitors. Anecdotally we found that dairy tanker drivers travelling daily from farm to farm are great disseminators of competitive intel around innovations they see.
A lesson learnt was to consider what security measures can be established around trials.
Provisional patent applications should be filed before there is any public disclosure of an invention in order to maximise patent protection.. There are legal exceptions, so consult with your IP advisor if there has been disclosure before filing. Depending upon the nature and timing of the disclosure, as well as the countries in which patent protection is to be sought, a potentially disastrous situation could be rescued.
For example, one measure I initiated for the National NZ Agricultural Fieldays was to declare it each year as a formal International Exhibition. This allowed exhibitors to get feedback on their innovations from the attendees (as long as they did not advertise the innovations for sale) without destroying the novelty requirement for a patent.
Regional differences
Often, agritech organisations are keen to capture the maximum potential of their innovation and invest significantly in trying to gain broad international patent protection.
However, different regions of the world have different husbandry practices and favour some species over others. What is relevant in one region may have less applicability to another. Thus, initial trials in one country may only illustrate the benefit of the new innovation to that region only and may even be irrelevant elsewhere.
For example, New Zealand primarily grazes cattle on pasture whereas Europe has a barn-based approach.
Identifying white space at the start of a project helps determine whether potential market size makes continuing with the research, subsequent commercialisation and investment in IP protection worthwhile.
A cunning science and IP based approach can be applied to this exercise to effectively increase applicability of the research and enlarge market size. For example, there may be core functional principles in the research which can go across species. If a researcher can show this generic applicability through trial data, then broader patent protection could be gained for use with many species in numerous markets.
If an overarching principle cannot be found, then a different patent strategy will be required.
Why consider peculiarities around life science based agritech patents?
The investment in research and commercialisation in terms of time, money and effort is considerable – often much more so than for pure hardware industries. Applying a fast-fail LEAN approach is less feasible for agritech.
Further, agritech has more variability, particularly once in vivo studies are undertaken. Modelling of agritech innovations is also more complex, having more external, less controllable variables – climate being a prime example.
With such uncertainty around large investments, it is important that a critical approach around research, commercial applications and patent scope is undertaken early on in a project.
