Innovator Founder ILR: is a patent application enough?

01 · The legal test

Application is not grant. Application is also not the whole test.

INNF 17.1(f)(iii) combines 2 requirements: significant research and development activity by the business, and an application for UK intellectual property protection. The wording concerns an application, not a granted patent. Waiting for a patent grant is therefore not an express condition of this criterion. Conversely, the absence of a grant requirement does not make every filing sufficient.

The endorsing body needs to understand the connection between the project and the protection sought. A patent application relating to one development cannot establish the significance of unrelated engineering work elsewhere in the company. Where the application has been amended, challenged, withdrawn or refused, disclose its actual position and obtain advice on the implications. Do not present an obsolete filing receipt as a complete current account.

The wider settlement endorsement remains a separate exercise. INNF 17.1 also addresses achievements against the endorsed plan, registration, active trading, the founder’s key management role and sustainability for the next 12 months. A technically strong project cannot compensate for a business that no longer satisfies those requirements.

02 · Substance

Identify the advance before assembling the expenditure.

The Home Office guidance’s settlement section requires substance behind the IP application. Its examples reject branding alone and purely artistic design supported only by customer styling research. They distinguish those activities from developments supported by scientific work and testing. These examples guide the assessment; they are not a universal requirement that every venture operate a laboratory.

A useful technical account begins with the problem. What could the available technology or process not do? What did the team investigate? What was tested, what failed and what changed as a result? The answer should identify the claimed advance and the material that allows somebody outside the founding team to evaluate it.

For a software venture, separate ordinary implementation from the work relied upon as significant R&D. Integrating an existing service, building an interface and making a product commercially usable can be valuable work without establishing the particular settlement criterion. An AI label, the number of development hours or the size of the engineering budget does not resolve that distinction.

The Rules do not prescribe a universal minimum R&D budget for this limb. Nor should an immigration submission assume that the treatment of expenditure in a tax claim decides the endorsement question. Use relevant accounting and technical material, but explain the immigration proposition independently.

03 · Evidence

Create a record that can be tested without the founder in the room.

The following is an evidence framework, not an additional statutory checklist. Its purpose is to make the claimed achievement verifiable. Begin with a dated project chronology linking the initial problem, development stages, testing, results and the subject matter of the IP application. Keep the primary records behind the summary.

Technical records may include design iterations, version histories, experiment logs, test protocols, benchmark results and explanations of unsuccessful approaches. Financial records should connect relevant people, suppliers and expenditure to that work. A large invoice headed ‘development services’ is less useful than a defined scope, recorded outputs and evidence of what was delivered.

An independent specialist can help explain a difficult advance, but the opinion should identify the material reviewed, the author’s relevant expertise, any commercial relationship and the limits of the conclusion. Independence should not be implied where the reviewer is an investor, supplier or paid member of the development team.

Include the actual IP documents and correspondence, not simply a certificate image in the business plan. Reconcile the applicant name, inventors, filing date, territory and subject matter with the research narrative. Any apparent discrepancy should be addressed before it becomes an unanswered endorsement question.

04 · Attribution

Buying rights does not establish that the business did the research.

A university collaboration, specialist contractor or overseas group company may have contributed to the product. The submission should distinguish existing background technology, newly created work and the rights available to the endorsed business. A licence or assignment can explain access to technology. It does not, by itself, prove which entity carried out the research relied upon for settlement.

The practical review should compare research agreements, statements of work, employment arrangements, invention records and ownership documents. Identify who directed the project, who performed the substantive work, what the business contributed and what it can now commercialise. Do not retrospectively describe a supplier’s pre-existing invention as an internally developed achievement.

This is not a proposition that every contribution must come from an employee or that collaboration is prohibited. It is an attribution problem requiring a fact-specific assessment. Immigration counsel and the relevant IP adviser should work from the same development history rather than prepare separate, inconsistent explanations.

The Intellectual Property Office explains that a patent applicant must be the inventor or someone entitled to the invention. Where the founder is named personally but the settlement case relies on the company’s research, explain the entitlement and commercial arrangements. Do not change ownership merely to make the immigration file look simpler without assessing the wider consequences.

05 · Guidance and Rules

Non-patentable does not mean automatically excluded, or automatically accepted.

The endorsing-body guidance contains a separate treatment of non-patentable IP. It permits consideration where there is significant R&D, credible peer reviewed academic or industry research attributing the advance to the applicant or company, and evidence of viable commercialisation. Ordinary copyright ownership is not a substitute for that evidential standard.

There is an important legal distinction. INNF 17.1(f)(iii) expressly refers to an application for protection in the UK. The guidance describes a non-patentable pathway without reproducing that requirement in the same form. It should not be presented as an express exception written into the Rules or as a guaranteed entitlement to settlement. A case relying on it needs a reasoned legal assessment and clear engagement with the endorsing body before the settlement plan depends upon it.

Ask the IP adviser to explain why the development is not patentable and what rights actually exist. The IPO notes that software patentability depends on its technical purpose; ‘software cannot be patented’ is too broad. Equally, copyright arises automatically in qualifying work and there is no UK copyright register. A private registration service should not be described as a UK government application for copyright protection.

Where the published guidance is being relied upon, identify each of its conditions and the evidence supporting it. A founder’s white paper, marketing case study or customer testimonial should not be relabelled as peer reviewed research. If the required material is absent, assess another qualifying achievement or a different timetable rather than treating the guidance as a fallback for any unregistered product.

06 · Commercial sequencing

Protect the invention before turning evidence into publicity.

The immigration file and the patent strategy operate on different timetables. The IPO warns that an invention must not already have been made publicly available. A founder seeking recognition, customers or research publication should therefore obtain IP advice before disclosing technical details in a pitch, website article, demonstration or journal submission.

This is particularly important where the immigration strategy involves peer reviewed outputs. Publication may support one evidential proposition while prejudicing a potential patent application. Neither adviser should assume that the other has cleared the disclosure. Agree what can be shared, with whom and when, and use appropriate confidentiality arrangements.

An overseas filing should not simply be labelled ‘international protection’. Identify how the actual application seeks protection covering the UK, including where a European or international procedure is involved, and obtain specialist confirmation of its status. The endorsement submission should describe the legal position reached, not the territory the founder hopes eventually to cover.

07 · Settlement design

Test the second achievement and each founder separately.

INNF 17.2 prevents a founder from counting the same criterion twice. Several IP applications therefore do not become several categories of achievement. INNF 17.3 also prevents founding team members from sharing the same means of satisfying the criteria. A joint venture needs an individual settlement analysis for each applicant.

The guidance is specific about IP used by multiple founders: it calls for clearly different R&D projects leading to a further product, each involving significant R&D in its own right, rather than merely dividing a larger filing into components. Map the claimed projects and products before promising the same settlement timetable to the entire team.

For the second achievement, choose what the business can genuinely prove. If the plan relies on investment, trace investment into the business and its active expenditure. If it relies on customers, assess the comparative evidence as well as growth. If it relies on jobs, check the duration and worker requirements early. The existence of a patent application does not make any of those separate tasks easier.

08 · The decision

Distinguish an incomplete file from an unmet criterion.

A file may be incomplete where substantial work exists but the records are dispersed across engineers, advisers and suppliers. The response is controlled reconstruction: retrieve the contemporaneous evidence, reconcile the chronology and explain the gaps. Do not backdate documents or convert a present recollection into an apparent historic record.

The position is different where the venture has undertaken ordinary product development, the proposed filing concerns branding, or the company cannot establish its contribution to the research. Better presentation may not cure those defects. Reassess the settlement achievements and the time available, including whether a properly supported extension is the appropriate route.

An extension is not automatic and requires its own endorsement and eligibility assessment. INNF 21.2 allows a settlement application to be considered instead for permission to stay in specified circumstances; it should not be used as a planned substitute for preparing the correct application. Endorsing-body discussions do not themselves extend immigration permission. Check the actual expiry and filing position separately.

Practical questions.