Every business and prospective start-up should have a comprehensive intellectual property protection plan. The term “comprehensive” is intended both to reflect the basic concept that the plan should cover all of a business's intellectual property of significant value, and that it should use all available legal regimes and business practices to protect such intellectual property.
One such type of intellectual property are patents. A patent is a form of intellectual property consisting of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention. A patent enables a patent holder to protect the structure, functionality or appearance of inventions that are new, useful and not obvious.
Patents enable a the patent owner to gain a de facto monopoly for making, using, selling and/or importing products or services covered by the patents. A patent owner, commonly a corporation, LLC or partnership, hopes that products or services covered by a patent become important, if not disruptive, technologies in the patent owner's field. Patents for disruptive technologies be very valuable, possibly representing nearly all or a substantial fraction of the value of a company. Its not uncommon for important patents to be valued in millions of dollars (although many patents are essentially worthless s they are too narrow or relate to a product with no market).
Entrepreneurs and start-ups are, in early stages of product development, are often focused almost exclusively on product development to the exclusion of other activities, including protecting core technologies using, among other things, patents. With a little planning, however, patent protection can be sought with a modest upfront investment in time and money.
Of course the most important activity relating to patents is to identify and fully define the core technologies used and/or sold by an entity. Then, a thorough investigation can be conducted to determine if such technologies have already been sold, marketed and/or patented by another entity. If it appears such technologies are new in the field, then, at a minimum, one or more provisional patent applications should be filed ASAP. Remember, the U.S. patent system is a first-to-file system, and the first inventor to file the application on a given technology gets the patent. Common sense dictates such provisional patent applications
Its relatively cheap to file provisional patent applications. The government fees for micro entities are only $65 to get a provisional patent application on file. If you don't file the application yourself, attorney fees to draft and file the application can vary from less than one thousand dollars to many thousands of dollars depending on, among other things, the attorney's customary fees, the complexity of the technology described in the application, whether or not you can supply a first draft of the application and whether or not you wish to file a rigorous, detailed application or a simple, informal one.
Provisional patent applications firmly establish a priority date on the invention … if two patents are filed, the earliest priority date gets the patent. Provisional patent applications also enable an entity to claim “patent pending” status. Of course, provisional patent applications must be followed up by regular patent applications within one year.
For more detailed guidance on intellectual property planning, watch our video on Comprehensive Intellectual Property Planning.