Consumables are a specific subset of the plug-and-socket concept, when typically a device and its consumable are designed exclusively with each other in mind to achieve a combined function, whether that is producing a cup of coffee or firing a rivet.

More often a new device may be interacting with an existing platform as a peripheral, or a new platform may need to interact with an existing ecosystem of peripherals. In this case the limitations of existing interactions or the need for new ones can be an additional source of innovation, but also a barrier to protecting the combined value of the resulting system, particularly when as a result a new invention straddles two or more devices, services, locations, or operating entities.

Leaving to one side the independent protection of the new peripheral, platform or service, we can look first at the issues relating to connectivity.

Plug and socket inventions

There are more than 30 (see note 1, below) standards for interconnectivity just for vehicles, and between vehicles and implements, many of which are applicable to agricultural equipment (see note 2, below). To pick just one, ISO 11783 (ISOBUS) has been a standard for agricultural/forestry machinery to enable plug-and-play interoperability between tractors and implements since 1991.

Clearly, machinery capabilities and data loads have changed over the last 35 years and so has the standard, with the last iteration being published in 2019. Each iteration will have been made to address new problems considered insurmountable by the previous iteration.

Consequently, an invention may relate to achieving new functionality with or through a connector that was defined nearly a decade ago and consequently forces compromise. Alternatively, it may relate to a superset or subset of the connections within the standard, whether logical or physical, electrical or mechanical, that are particularly helpful for certain use cases and are compatible with aspects of the standard even if not - yet - included in it. Hence there are opportunities to explicitly protect how new or enhanced functionality can be accommodated in legacy standards or within legacy constraints.

Clearly also new standards are being developed and updated all the time (see note 2, below), and so there is scope to become involved in such standardisation both to achieve technical goals you consider necessary to your/the market, and also to incorporate your own IP into a system that many actors may need to subsequently adopt.

When an invention is incorporated into a formally recognised standard, it normally then forms part of a license pool of IP related to the standard that becomes part of the cost for parties joining the standard, under so-called “FRAND” terms (fair, reasonable, and non-discriminatory). This in turn means that anyone who wishes to use the standard can do so providing they join it. Meanwhile proprietary/exclusive ecosystems typically require having a large enough market to create customer engagement, whether that is your own or through licencing your invention to others to achieve critical mass.

As a separate or complementary approach, rather than looking at the connection itself, one should also look at how the devices or services on either side of the connection interact, particularly when innovation is not neatly split between them, and/or when you only control one side of a wider system.

Transmitter and receiver inventions

Sometimes, the part of the invention that is most protectable may be located primarily in just one of the connected devices or services, and not always in the one that has the most opportunity for revenue. This is often the case for example in transmitter and receiver inventions where the innovation may be primarily at the transmitter, but there are potentially millions of receivers (for example, in the case of phones, TVs, or the like). In the agritech space, an equivalent may be that data acquisition is by a ubiquitous conventional device or a third party platform, but your new innovative process or use of this is provided elsewhere. Conversely, your innovative analysis provide better use of (expensive) conventional systems.

Hence whilst in the ideal world the best way to protect such systems is to split the invention itself into sections that are independently enforceable against a single device or entity, the problem here is that the part of the system that is more valuable (for example, in terms of sales volume or consumable testing kits) may, on its own, appear to have little or no inventive step.

More generally, as you break a complex invention into individual steps implemented by individual devices/services in order to enable direct infringement by one party, the inventiveness of each step alone may become harder to assert. In other words, there can be a trade-off between inventiveness and whether direct infringement of any given part is possible.

One useful strategy for splitting up an invention is to start by identifying your end users/customers, and then progressing along the processing chain to where the invention lies. If it is in the device or service used by the customer, then this is a straightforward patent claim. Meanwhile if it is at one or more remove from the end user, it may be necessary to look at how the inventive contribution can be made to feed back to cover the move valuable market.

There are a number of techniques suitable to particular scenarios, but a typical approach is to claim how a device performs better/differently or is adapted to take advantage of or enable the inventive improvements on the other side of the communication link (whether this link is wireless, electrical, or mechanical), rather than claiming the improvement itself. In other words, it can be useful to pull in the context of the broader invention (in a non-limiting manner) in order to boost the non-obvious nature of the part of the invention found in each device.

This can be done in a variety of ways when drafting a claim, such as using the past tense and passive voice: claiming data or devices that have had a process applied or supplied to them often removes the need to include the thing that applies/supplies the process. Similarly, invoking the broader system in which the invention operates, without claiming it in isolation, is possible through use of “suitable for” language in the claim preamble.

Meanwhile, in light of the trade-off mentioned previously, it is generally useful to claim the combined system including the main inventive part, to ty to provide a contributory infringement protection (where infringing part of the system contributes to infringing the whole system) as a back-up plan.

Finally, one can include claims to other parts of the system on the assumption that they may get modified to better exploit the main inventive part; that is, what could be done in future to bring the ecosystem up to speed?

In this way it is possible for an invention that may at first glance appear to be a low value or back-office process to reach through to third-party devices and systems in a wider and more valuable market.

Summary

Using approaches like these can protect your market, particularly when you may be creating demand for user devices you can’t easily claim are inventive, or when you have limited control over by who or where some steps of a process you contribute to are carried out.

In agritech in particular where machinery may last for decades, being able to plug into existing systems or provide new services remotely whilst still protecting the most valuable parts of the market may need approaches like the ones mentioned above, or similar techniques tailored to your situation.

As ever, your D Young & Co representative can advise on the best approach in these circumstances.

Notes

• See dycip.com/xkcd
• See Wikipedia’s ISO standards for trailer connectors for a list of standards for interconnectivity just for vehicles, and between vehicles and implements, many of which are applicable to agricultural equipment: dycip.com/iso-standards-trailer

Related articles

• Protecting your after-market. Part 1, consumables
• Protecting your after-market. Part 2 – repairs