The scale-up phase of innovation often presents daunting challenges. However, where there are problems to be solved, patenting opportunities may follow. Such late-stage innovation is often more incremental in nature than an initial invention that forms the core of the business, but cumulatively, a platform of key enabling patents may hold significant value to a company.
For instance, as noted in a previous post (Feb 9, 2018), in order to secure patent protection for an innovation, the technology must be non-obvious. A lack of appreciation in the public domain (referred to in patent lingo as “prior art”) of the source of a problem itself can factor into the non-obviousness inquiry. Say you found that, during scale-up, a fermentation stage suffered from poor productivity because it had insufficient heat transfer and you invented a way to improve heat transfer throughout the reactor. While maintaining the temperature during fermentation is not innovative in and of itself, perhaps because of a particular element of the design of the fermentation reactor utilized during this stage, the problem was worse than originally anticipated and led to lower than expected product output. Identifying the underlying reason as to why the reactor design resulted in poor heat transfer might bolster patentability, even if the solution may have been obvious. Of course, all of this is highly fact-dependent, but you get the gist. If you solve a number of such problems during start-up of plant operation, and patent them, cumulatively this could result in a strong and very valuable patent portfolio.
It cannot be over-emphasized that the funding needed at this stage can represent a barrier to market entry. Because the cost for scale-up is extensive, investors want to make sure that competitors cannot copy the platform of innovation that is enabling for the scale-up. Of course, you cannot typically obtain patents covering the enabling technology until scale-up starts. Nonetheless, having a plan or strategy beforehand detailing how you will protect intellectual property arising during this phase can give investors the peace of mind that their investment will be protected from copyists.