For those of you that have somehow not been caught up in the Game of Thrones Season 7 mania currently sweeping the world, you may not heard of the majestic liquid – wildfire. Wildfire is an incredibly flammable liquid that is created and controlled by the Alchemists’ Guild, an ancient society of learned men using arcane knowledge. The liquid is highly volatile, and when ignited can explode with tremendous force. It is clear to see the significant value in this magical liquid, and accordingly, it would be wise for its creator to think about how best to protect their intellectual property. Protecting your technology with a patent is, however, not always the most effective strategy. Sometimes, protecting your innovation as a trade secret can be more valuable option.
We have put together five points as to why protecting wildfire with a patent may not be the best idea.
The wildfire liquid becomes more potent as it ages. The most notable supply of wildfire, placed under Kings Landing by Aerys II, was over 20 years old when used to burn down the city. As a standard patent provides 20 years of protection, by the time the first batch of wildfire liquid reaches its potential, any patent would have expired (and competitors are fee to sell their product that was made as soon as the invention become public).
Lesson 1: Before applying for a patent, consider the lifecycle of your invention bearing in mind that standard patents provide a 20 year monopoly from filing, and innovation patents provide an 8 year monopoly.
Wildfire, being so incredibly flammable, is unlikely to have a large market (aside from Kings looking to burn down enemy cities). As commented by Bronn in Season 2, the volatility of wildfire is too unstable to be used in military operations with inexperienced troops. Accidentally dropping a single jar would have devastating consequences. Therefore, the product may be unlikely to generate significant sales – which in turn means that patent costs may not provide a good return on investment.
Lesson 2: Weigh potential market size, and potential revenue against patent application, examination and maintenance costs.
Further to being a small market, in order to expand your sales it is likely that you will need to reach out to other Kingdoms, who would use the wildfire against one another, and potentially against you! One would think that the Kings of each Kingdom may be keen to acquire an large supply of the potent liquid, however, is this enough to justify the expense of a patent?
Lesson 3: Patenting in different jurisdictions is subject to each jurisdiction’s Patent Laws and Regulations – and typically incurs both foreign agent and foreign official fees. Therefore, navigating the requirements of each jurisdiction should be weighed against potential market size, before expending significant funds on multi-jurisdictional patent protection.
4. Do you want to disclose how to make it? Or can you keep it a secret?
The alchemists refuse to reveal how wildfire is made, only claiming that it is prepared using magical spells. There would be significant consequences in disclosing the secret recipe, as your enemies would be able to create wildfire of their own (and would be free to do so if your patent didn’t extend into your enemy’s Kingdom).
Lesson 4: Decide whether there is a realistic possibility of maintaining confidentiality in respect the invention, as it may be more lucrative to keep an invention under wraps.
We know that Hallyne agrees to provide wildfire for Tyrion’s purposes. We therefore suspect that this deal (the details of which are confidential) is sufficient to act as a secret commercial use of wildfire.
Secret commercial use of your invention prohibits patentability. This is so that a patent owner does not receive longer than 20 years of protection (combined between the “secret years” and the “patent years”).
Lesson 5: Prior to applying for a patent you need to be mindful of any secret commercial use which may be been incurred prior to filing, and the impact this has on the validity of any application and/or granted patent.
In summary, “wildfire” would appear to be a far better candidate for protection as a trade secret than as a patent, such that no one else can use their technology against them.
Whilst this is a rather tongue-in-cheek example from Game of Thrones, the take-away lessons are valid – namely, that although patents regularly provide and effective and robust protection of intellectual property, there may be instances where patents are not appropriate. When deciding whether or not to patent vs maintain a trade secret – consider the invention lifecycle, potential consumers and markets, market size vs patent costs per jurisdiction, whether you can realistically keep the details of the invention secret, and whether there has been any secret commercial use prior to filing.