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Patent

Failing To File Patent For New Technology Could Cost Company More Than Money

It is arguably one of the most exciting moments for a technology entrepreneur — seeing that invention for the first time. Whether it’s a new software program, mechanical device or a breakthrough biotech discovery, the feeling is always the same, pure elation. If you’re a technology entrepreneur you know the feeling. You spend months, possibly years, working toward this moment. Now that you’re here, you’re ready to turn this exciting innovation into a business. But before you take that costly leap of putting together a company and going to market, consider one very important step that can save you, and your company, everything you’ve worked for — the elusive patent.

Who needs it?
Many technology companies and entrepreneurs initially think they don’t need, or just can’t afford, patent protection at the very initial stages of their business development. “No one else could develop this right now in the exact same way we have,” or “It’s already protected by trade secret laws,” or “It’s going to cost a lot of money right now, so we’ll wait until the product is making us a profit.” The truth is, not filing a patent to protect your proprietary technology could cost a great, great deal more in the end, and might even make your company less attractive to investors and business partners.

What kind of companies should file for patent protection?
Companies in a wide variety of technology fields increasingly rely on patents as a key tool to protect their technology. For example, companies in the high-tech industry (software, semiconductors, etc.), the low-tech industry (consumer gadgets, etc.) and the life sciences/biotechnology industry (pharmaceuticals, medical devices, etc.) are spending more and more money on research and development and, thus, are increasingly looking to patents as a mechanism for protecting this expensive investment.

If you’re a typical technology startup, you will likely need to find early-stage, mid-stage and, eventually, late-stage investors for capital to continue to fund your research and development, and pay the tremendous costs associated with commercializing your products and services. Every kind of investor, from angels to venture capitalists, will scrutinize the adequacy and strength of a company’s intellectual property assets as a part of the investor’s decision to invest in that company. More than ever, investors are expecting a company to have either filed for patent protection or already have some patents. Another significant ramification of failing to obtain adequate patent protection is that investors may place a significantly lower valuation on your company. Thus, taking steps to file for patents, and then eventually obtaining patents, is often a critical and significant step in proving credibility to any kind of investor.

Another major benefit of patent protection is using your patents as a legal mechanism to protect your company’s most critical proprietary technology from infringement by competitors and others. Competition is fierce in the technology and biotech/life sciences industries and your competition may knowingly, or inadvertently, use your technology to gain market share. Your patent is often the most valuable tool to combat these serious situations and could be a key factor that differentiates your company from your competition.

How patents pave the way to new markets?
Many technology companies, particularly startups, are not in a position to commercialize their technology in every country in the world and in every “field of use.” A solution to this problem is to find business partners who can be given a license to use these technologies in other markets, both here in the U.S., and globally. Taking steps to file for patent protection can increase your company’s ability to find proper licensees who will scrutinize the technology and opportunity as much as any investor. Patent protection can also increase your negotiating leverage when entering into contracts with licensees and could have a significant impact on the level of royalties and other compensation that licensees agree to pay you for the use of your technology. Indeed, potential licensees who still want rights to your technology very often negotiate significantly lower royalty payments if you have failed to obtain proper patent protection because the licensee deems your technology to simply be unprotected “trade secrets.” As a bottom line, taking steps to obtain proper patent protection can potentially increase the revenue stream to your company from others who want to use your technology.