You can follow the letter of the law and still not capitalize on the opportunity to protect, enforce, and exploit your innovation. Make sure you’re not spending valuable resources in the wrong areas by avoiding these five common mistakes.
Mistake 1: Undervaluing Or Overvaluing Your IP
Undervaluing and overvaluing IP is a common trap for busy tech start-ups. On the one hand, it’s tempting to think of IP as a simple legal formality and to delegate responsibility to an internal or external patent attorney. While this approach may result in patent filings, chances are that you’re missing opportunities to fully monopolize the innovation. On the other hand, it’s equally easy to overstate the importance of your invention or the IP acquired so far. Until you plot that invention and existing IP into the patent landscape of your tech field, then you will not know its real value or potential.
Mistake 2: Missing Deadlines or Formalities
IP is a territorial right, and requirements for protection can vary drastically by country or jurisdiction. Given the often arcane and inconsistent legal processes and procedures required to meet global patent and trademark deadlines and formalities, it’s understandable that errors are made and deadlines are missed. Unfortunately, such mistakes can have grave consequences for the validity of your IP rights—potentially blocking your ability to protect your innovation and even undermining your efforts to sell your business or enforce your rights in court.
Watch out, in particular, for rules around:
- Disclosure: Innovation is only patentable if it is novel, so don’t publish or publicize it prematurely!
- Confidentiality and trade secrets: It can be challenging to uphold confidentiality if you work closely with contractors or external partners, so make sure you’re taking all possible steps; for example, by using non-disclosure agreements and limiting access to trade secrets and know-how.
- Patent prosecution, annuities and recordals: If you miss a deadline to reply to an office action or renew your patent rights, you could limit, undermine or even lose your right to the patent itself. As important, you must keep your patent portfolio up-to-date. That means updating the record (known as recordals or title updates) if you change business information, such as your name or address.
Mistake 3: Thinking of IP as a Cost, Not an Investment
It’s a common complaint that patents are expensive to file and maintain, and while this is arguably true, that is only part of the picture. Patent rights provide you with a monopoly to commercialize your product or technology for a set period, thereby providing the opportunity to recoup your R&D costs and drive future profit for your business. If you protect innovations appropriately and in the right markets, the money you spend now on filing those patent rights should be considered an investment rather than a drain on your resources.
Of course, money can be tight for start-ups, so it’s natural to want to dedicate all your resources to creation and commercialization. However, IP rights have their uses here, too. Patents may be “intangible assets,” but they still provide a valuable title that you can use to generate IP financing to fund product development.
Mistake 4: Taking a Short-Term View
Commercialization should go hand-in-hand with your IP strategy. Not only can IP increase revenue in the short term but it can also help you to optimize your company’s value throughout its entire lifecycle, driving future product development, operations scaling, mergers, acquisitions, and even business owner exit.
By thinking long-term, you can ensure the validity, accuracy, and value of your IP portfolio, whether you plan to grow, diversify, or sell.
Mistake 5: Leaving IP to the Lawyers!
Patent and trademark attorneys possess incredible knowledge and expertise in the IP legal system. However, they’re not necessarily renowned for their commercial prowess.
While technical legal advice is vital to meeting the procedures, deadlines, and formalities mentioned above, it only covers part of the picture. All businesses, especially tech start-ups, need strategic IP advice, not solely filing and prosecution services. That’s why we recommend working with an IP partner who can help you to optimize your patent portfolio rather than simply protecting specific inventive concepts on demand.