Patents are filed regularly by businesses of all sizes to protect technology and other intellectual property. However, the patent process is a long one, generally taking two to three years, and it is one that is still misunderstood by a surprisingly high number of startups. It is an expensive process too, and you can’t afford for anything to go wrong. Here are five common mistakes startups should avoid with intellectual property and during the patent process. We’ll explain why they are mistakes and how to avoid making them yourself.
- Ignoring Intellectual Property Practices in a Race to Market
A serious mistake is ignoring intellectual property practices that protect your IP in the race to market. You cannot benefit from the protection of trade secrets unless you protect the secrecy of that information in the first place. If you post pictures of your prototype or computer models on social media, you just blew it. You can’t punish someone for talking about the product or the project if you didn’t make them sign a non-disclosure agreement prohibiting such sharing.
A common mistake is neglecting to consider foreign patent rights. If your business is based in the United States, there is a twelve-month grace period after disclosure in which you can file a U.S. patent. However, this undermines your ability to file foreign patents. If you think you should patent something, protect the information and start the patent process as soon as possible.
- Having a Piecemeal Approach to Intellectual Property
Too many startups don’t recognize the breadth of their potential intellectual property assets. For example, they may rush to patent their invention while ignoring the importance of trademarking their preferred product name first.
Seeking a patent on one technology while ignoring the manufacturing processes or software that is equally important could leave your intellectual property at risk. Consult with a qualified IP attorney so that you can understand which intellectual property can and should be patented and what IP should be protected in other ways.
For example, using proforma non-disclosure agreements can undermine your intellectual property rights. A generic NDA that says you can’t disclose confidential information without explicitly stating what is confidential renders it nearly meaningless. An NDA should make it clear when there is and is not an implied license for intellectual property under the NDA. Explicitly state that the person has to protect information about your business proposals, designs and prototypes and return all information and items related to the project at the end of any assignment.
Another risk of the piecemeal approach is that you find yourself forced to protect higher value assets because you didn’t develop a coherent intellectual property protection strategy at the onset that protected all of your IP.
- Not Utilizing the Right Type of IP Protection
Many startups fail to appreciate the importance of their intellectual property assets. They may not recognize the value of patents until it is too late. In some cases, a startup doesn’t know if something can or should be patented. Go ahead and consult with an intellectual property expert. An IP attorney will be able to advise you on how to get everything together should you decide to file a patent later.
In other cases, people make mistakes trying to patent something that cannot be patented, though it may be eligible for a trademark, copyright or protection as a trade secret.
- Attempting to Patent Items Themselves
It is no secret that many startups tend to be strapped for cash, and many may try to cut corners in an attempt to reduce costs. Some attempt to patent inventions, technologies or business methods themselves. However, intellectual property rights are a complex matter, and you cannot afford to make a mistake. For example, someone may file a provisional patent thinking this is enough, when the reality is that they need to file a non-provisional application as soon as possible to protect their IP. Or they may try to file a patent without doing a prior art search, though a targeted prior art search will lead to a more robust patent.
Companies like Patent Tree, for instance, help startups with patents, trademarks, non-disclosures and all other related paperwork needed to protect your company and the proprietary information that is its lifeblood. They’ll help you file a patent application that is perfectly suited to the IP you want to protect. If you file a patent that is too specific, you may not be able to commercialize it when it ends up having broader applications. And a patent that is too broad is likely to be rejected, costing you time and money.
- Not Knowing the Critical Deadlines
Know that patent applications are highly time-sensitive and waiting too long can destroy your opportunity to patent a product or process. In the U.S., the clock starts ticking the moment someone discloses the invention or product. This isn’t limited to a sales pitch or social media posting. Talking about the product at a trade show or discussing the idea in an online forum can start the clock ticking.
The ideal solution is determining which intellectual property is critical to your business and working with an IP expert to determine how to protect it, whether or not you’ll patent it, so that you have the option of patenting it later. You don’t want to have to rush to file a patent because of someone’s mistaken public disclosure.
A related mistake is waiting too long after filing a provisional patent application. You may have filed the provisional patent application to try to protect the IP. However, these automatically expire a year after filing – and it cannot mature into a patent. Waiting a year or more before filing the non-provisional application could expose your idea to the public.
Patents are an important step in protecting and commercializing technology, when they are done right. While patent applications are expensive and time consuming, mistakes may cost you the ability to receive a patent or add to the cost of securing one.
