The honest answer is: for most SMEs, without financial backing, no.
That is a difficult thing to say when you have spent years developing a technology, paid tens of thousands in patent attorney fees to protect it, and watched a competitor launch a product that looks remarkably similar to yours. But it is the reality of the UK patent system as it currently operates, and understanding it is the first step to doing something about it.
What patent enforcement actually costs
A patent gives you an exclusive right. It does not give you a free fight.
Enforcing a patent in the UK means taking legal action — instructing specialist solicitors, obtaining expert technical evidence, and in most cases going through a process that can take two or more years before a judgment is reached.
The Intellectual Property Enterprise Court was created specifically to give SMEs a more accessible route to IP litigation, with a cap on recoverable costs of £60,000 per side. Even within those limits a realistic budget is £30,000 to £50,000. A contested High Court patent case — the route required for larger or more technically complex disputes — routinely costs £500,000 or more per side, with no cap on what you might be ordered to pay the other side if you lose.
For most SMEs, those figures represent months of revenue, not a contingency reserve.
The enforcement gap in practice
In 15 years as an IP litigator before founding Safeguard IP, I saw the enforcement gap play out repeatedly. A business with a genuine, valid patent that was clearly being infringed. A competitor — often better funded — copying the technology. And a founder who had done everything right: filed early, maintained the patent, taken legal advice. But who simply could not afford to enforce it.
The result was almost always the same. The infringement continued. Market share was eroded. The patent — in commercial terms — became worthless.
This is not a rare edge case. It is the common experience of innovating SMEs in the UK. The IPO itself has acknowledged that fear of enforcement costs is one of the primary reasons UK businesses patent less than their international peers.
Why this matters beyond the individual dispute
The consequences extend beyond any single company. When SMEs cannot enforce their patents, the incentive to innovate is weakened. Why spend years developing a proprietary technology and thousands protecting it if a larger, better-funded competitor can copy it with impunity?
This is the slow erosion of the UK’s competitive edge in technology and innovation — not through any single dramatic event, but through hundreds of disputes that never happen because the cost of fighting them is prohibitive.
What are the options?
There are broadly three approaches available to an SME facing infringement.
The first is self-funding — drawing on reserves, investor capital or borrowing to fund a claim. This is the most direct route but places enormous strain on resources and carries real risk. If you lose, or if the other side runs up costs that exceed your estimate, the financial damage can be severe.
The second is third party litigation funding, where an external funder finances the claim in return for a share of any damages recovered. This is increasingly available in IP cases but typically only where the potential damages are substantial — usually several million pounds. For most SME patent disputes it is not a realistic option.
The third is before-the-event IP insurance, taken out before any dispute arises. This is where I believe the balance of the argument lies.
Why insurance is the most practical answer for most SMEs
Patent insurance covers the legal costs of enforcing your patent rights against infringers and defending allegations that you have infringed a third party’s rights. The insurer funds the action — legal fees, expert evidence, court costs — subject to a merits assessment from your solicitor confirming the claim has reasonable prospects.
For a business paying between £1,200 and £4,500 per year depending on the level of cover, that is a significant transfer of financial risk. It means that when infringement occurs — and for IP-rich SMEs it is a question of when, not if — the decision about whether to act is made on the merits of the case, not on whether the business can afford the fight.
It also changes the dynamic with potential infringers. A competitor considering copying your technology will think differently if they know the patent is insured. The existence of an insurance policy — particularly if it is mentioned early in correspondence — signals that enforcement is not contingent on your cash reserves.
The bottom line
Owning a patent and being able to use it are two different things. For most SMEs the gap between them is financial. Insurance does not close that gap entirely, but it makes it manageable — and it puts smaller businesses on a more level footing with better-funded competitors.
If you have invested in developing and protecting your technology, it is worth thinking about whether you have also protected your ability to defend it.
Find out more about patent insurance → Get a free indicative quote →
This article is provided for general information purposes only and does not constitute legal advice. Readers should seek independent legal advice on their specific circumstances before taking any action.
