Why A Patent Application Should Be Your Startup’s First Investment

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By Jill Hubbard Bowman (Intellectual Property Attorney, Independent) Nearly every business model has a core technology. Your core technology may be a consumer item such as a back scrubber for the elderly, or it may be an online game, a smart phone or web application, or new plant variety, a pharmaceutical, or a better bra.

Whatever your core technology, the first thing you should do before you drop tens of thousands of dollars on web servers, manufacturers, SEO, and t-shirts or mugs with your company logo, is to file a good patent application. This is especially true if you have already spent over $10k paying people to help you develop it (which brings up all kinds of complicated issues with independent contractors).

Mean things happen in the real world. Every day we hear variations of these rude awakening scenarios:

  • Companies taking their invention to a Chinese manufacturer and then seeing it in Home Depot five weeks later under someone else’s brand.
  • Inventors showing the invention to their best friend, and then discovering best friend selling it online
  • Entrepreneurs spending tens of thousands of dollars on a web application and then seeing the same application idea launched by a company in the same building who overheard the idea at a bar and beat them to the punch.

The honest truth is, unless there is a huge barrier to entry into your market (e.g., you are the only person on earth who can make it) -– you need to create a barrier, and the best way to create a barrier is to file a patent application. Remember, you are not creating a barrier for yourself alone.

Investors looking at your company want to see you’ve done what you could to put a fence around your farm before they give you their money to buy new cows.

Recently, one of my clients avoided a rude awaking and rather, had a late night epiphany: “Last night I realized, I have spent over $25,000 and two years developing this product and some bloody jerk could just walk away with it tomorrow, after I did all of the work figuring out how to make it function. I am basically giving someone a nice, packaged, figured out idea!”

Sometimes late night epiphanies and rude awakenings speak louder than the patent attorney in the ear saying, “When are we going to file the patent application?”

The point is, figure out your core technology, and then talk to a few good attorneys about how you might protect that technology. You’d be shocked to know what is patentable from quirky games to three-legged pantyhose. Find someone who is competent and will draft a robust patent that will serve your company’s needs.

After you pay for the patent, go crazy with the logo goods, launch parties, SEO, and websites knowing that you’ve given market protection the boy scout try.

This post was originally posted at IP Law for Startups.

Editor's note: Got a question for our guest blogger? Leave a message in the comments below. About the guest blogger: Jill Hubbard Bowman is an independent intellectual property attorney with more than ten years of experience in protecting, enforcing and licensing intellectual property rights. She started her practice in Silicon Valley at WSGR, the premier firm specializing in representing technology startups. Jill worked for WSGR for four years before moving joining one of the largest intellectual property firms in the country, Brinks Hofer Gilson & Lione. After that, she started her own law practice and blogs at IP Law for Startups.