A strategically-implemented intellectual property (IP) strategy, including a well-managed patent filing program, serves as an enabler for next-generation defence capabilities. A strategic approach can maximise the value of defence technology by incentivising Research & Development (R&D) investment, attracting partnerships and investment, and enabling technology transfer, ultimately strengthening Australia’s domestic defence industrial base.
While navigating security requirements can add complexity, the potential benefits of a well-managed patent filing approach, embedded within a broader IP strategy, can make seeking patent protection for newly-developed or emerging defence technology worthwhile.
Unlocking the Potential
Commercialising defence technology presents unique technical challenges, often involving long product acquisition cycles, significant investment and inherent risk. However, a strategically-implemented intellectual property strategy, which may involve patent protection, can help to mitigate these commercialisation hurdles.
Ultimately, patent ownership encourages innovation by incentivising increased R&D investment and technology commercialisation in several ways:
• Securing a Competitive Advantage: patents can interfere with the decision-making process of competitors and reduce the risk of the competitor copying an innovation protected by a patent. A patent acts as a technical barrier to market entry, potentially delaying and hindering competitors and providing a first-mover advantage.
• Attracting Strategic Partners and Investment: a patent acts as a credible due diligence tool for potential collaborators and funding sources, such as government agencies and venture capitalists. This can facilitate strategic partnerships with defence primes or attract investment needed for further development and commercialisation, including adapting defence technology for new civilian markets or vice-versa.
• Enabling Licensing and Technology Transfer: a granted patent allow its owner to control who and how the patented technology is licenced to other entities, potentially generating new revenue streams and industry collaboration.
Beyond the Battlefield: Dual-Use Applications
Defence technology often offers “dual-use” potential, creating new commercial opportunities. For example, GPS technology, originally intended for military use, now plays a vital role in civilian navigation systems. Patents can help to incentivise exploring “dual use” applications through new civilian markets.
While some aspects of defence technology may be classified, a patent can offer a level of protection for non-classified aspects of a dual-use invention, particularly if those aspects can be reverse engineered.
Navigating the Landscape: Considerations for Defence Patents
While the benefits of patent protection are significant, the patenting application process for defence technology can be complex. Much of this complexity relates to national security obligations which may require a patent application for defence related technology to be subject to a ‘prohibition order’. Undertaking a patenting application process needs to balance the benefits of obtaining patent protection while safeguarding sensitive information.
Key considerations include:
• Publication and Security: Careful management of patent publication is essential. Collaboration with patent attorneys is crucial to navigate the secrecy requirements of government IP agencies and ensure compliance with national security regulations. Filing patent applications in overseas markets also requires an understanding of specific patent laws and the need to comply with international security obligations.
• Balancing the disclosure: Patents must include a sufficient level of technical disclosure to allow a skilled person to put the invention into effect. Obtaining the right balance between protecting sensitive information and disclosing, in a patent application, a sufficient level of technical detail for a valid patent can be challenging.
• Working with Patent Attorneys: Partnering with patent attorneys who have experience in the defence sector is helpful. They can advise on patentability, prepare patent application documents claims effectively, and identify potential risks and challenges involved with applying for patent protection.
Patents as a Launching Pad for Commercialisation
A strategically implemented patent filing approach, embedded within a broader IP strategy, can provide a springboard for commercialising defence technology by fostering R&D investment, attracting partnerships and investment, and enabling technology transfer.
By strategically leveraging patents and collaborating with patent attorneys, the prospects for innovations in defence technology reaching their full commercial potential may be improved.
