Start-ups Need To Plan For Protecting Their
IP Early In The Process
In many situations, a fledging company's single most important asset is its intellectual property.
A common mistake that start-up companies often make is failing to properly evaluate and have a plan for protecting its intellectual property from the outset. This includes an evaluation of the types of IP that may be available, as well as the cost of securing that IP.
In the case of patents, many countries outside of the United States require that a patent application be filed prior to any public disclosure of the invention. A public disclosure can be a sale, an offer for sale, a publication, a trade show presentation, or even a public demonstration of the invention. In the United States, under Title 35 of the US Code, inventors can file an application for up to one year after a public disclosure and still retain rights in the invention; however, waiting may lead to a permanent and irrevocable loss of any potential foreign patent rights. Thus, it is imperative that a start-up that does not want to lose its potential foreign patent rights file a patent application prior to any public disclosure.
Planning is also necessary to properly budget for obtaining intellectual property. The costs for obtaining patent rights, for example, can vary widely and is unpredictable due to the nature of the interaction with the United States Patent Office. One patent application may sail smoothly through the USPTO, while another one languishes for years as the inventor's representatives and the patent examiner dispute the novelty of the invention, at significant expense. The costs grow geometrically when multiple foreign patents are sought simultaneously, and these costs can bury a start-up as it tries to get its financial legs.