Navigating the Complexities of Patenting for Software Startups
Complete Guide to Perfect Patent Approach for Your Software Business
For budding tech companies, securing patents is a tricky and challenging undertaking. This realm requires an astute patentability assessment of ideas, as understanding how to evaluate the patent potential of inventions is priceless.
The Necessity of a Strategic Patent Plan
New inventions, particularly in the software domain, often face a balancing act. They need to secure initial protection while preparing applications with solid chances of approval. With software's prolific history in the US patent office, it's essential to dodge duplications, poor submissions, and omissions of crucial information.
Moreover, existing software patents often act as barriers, snaring more in licensing and jeopardizing subsequent inventions. Consequently, the contemporary patent system tends to favor undeserving winners and make it challenging for startups to navigate the process without substantial financial backing and expert guidance.
Check out: Answers To 25 Most Searched Patent-Related Questions
The Foundation of Strong Software Patents
A common misconception is that securing elite legal representation is the primary step in patenting. However, it's the innovative essence of the invention that forms the core and foundation of a robust patent. The patent worthy must display exceptional uniqueness and deviation from existing protected inventions, effectively serving as the basis for a legal monopoly that can last for decades with minimal risk.
The invention must also exhibit enduring value. It should resolve a problem or offer a solution that is likely to stay relevant for a decade or more. People don't buy tools solely because they are tools; they purchase tools because they provide effective solutions to stated problems. A patent-worthy invention must, therefore, be innovative, unique, and viable for the long term.
Prudent Allocation of Patent Efforts
Not every invention deserves the effort of being patented. Patenting for the sake of patenting is unwise, leading to unnecessary financial expenditure, time, and energy, especially when the patent won't be economically beneficial or protect a critical element in the final product.
Beginning entrepreneurs should weigh the protection of their inventions realistically. Consider focusing resources on innovations that are truly going to hit the market and are potential revenue-makers. A patent doesn't have to be an attempt to build a reputation through ownership of numerous patents. Certifications or industry awards can achieve the same goal for far less investment.
The Advantage of Oculus' Patent Strategy
In the case of Oculus – creators of the renowned virtual reality headset – they strategically prioritized patenting software over hardware. Most of the hardware components were off-the-shelf parts from previous inventions. However, the software and hardware combination that made their version of virtual reality unique was the focus. This strategic approach proved successful in setting Oculus apart from competitors in a patent trial.
The Benefits of Filing Patents on Distinct Parts of an Invention
Even if an invention earns a patent, is it worth fighting for? Big companies with immense resources, lawyers, and financial strength can tie up budgeting startups in litigation, draining their funds and postponing protection. To combat this, layer your invention with more than one patent, strategically filing them on different components that have a clear difference. This approach creates a more complex legal battleground, making it harder for larger players to make significant headway.
For instance, Apple was approved 44 patents on a single iPhone design in 2018. Moreover, you may consider selling one of the patents to generate funds for defending against legal action. If the invention shows strong market potential, companies will likely be interested in investing, which can help offset the financial burden in litigation.
Outlining a Patent Strategy Roadmap
Many startups and new companies falter by attempting to patent too early. A strategic patent roadmap suggests the optimal time to pursue patents along the company's growth and launch path. The most successful tech patents have been secured just before the product launch, allowing companies to protect every exponential dollar in sales as the product takes off. By patenting too early, resources may be wasted on ideas that never reach the market, and patenting too late risks the emergence of viable substitutes before the startup can establish itself.
A well-planned roadmap includes development, prototype, investment, pre-market preparation, pre-market launch, and production stages. The ideal point for patenting depends on the invention's viability and relevance as a new and effective customer solution. When that happens and goes public, the possibility of losing the invention without protection skyrockets. As international patent markets grow in harmony, protection can be extended across borders as well.
Combining Elements for a Competitive Advantage
To differentiate their products from competitors, startups often explore a specialized approach. This typically involves uniting existing elements in a unique way to create a new product market. While these elements may already be patent-protected individually, the new combination itself could be eligible for a patent, as long as it offers a novel purpose that hasn't been previously conceived.
However, it's important to remember that a combination alone is not an automatic patent approval. The government will only approve patents if the invention is "new, useful, and non-obvious," not simply a combination of pre-existing elements.
Utilizing Provisional Patents as a Tool
Many assume that a patent is an all-or-nothing submission. However, there is the option of a "provisional" patent application. This choice allows filers to submit a temporary application that lasts a year, offering protection for an innovative invention at a fraction of the full patent's cost. Unlike the full patent process, a provisional patent is cheap and often handled with self-written applications, instead of relying on attorneys.
A startup might consider taking the following factors into account before hiring a patent attorney:
- Cost of the attorney's services
- The attorney's reputation in the patent field
- The depth of the attorney's knowledge and expertise specific to the field
- The attorney's track record of successfully securing patents
- The attorney's availability and level of engagement
Owning Patents Under the Startup's Name
Whatever patents your startup decides to pursue, make sure they are owned by the startup business entity right from the start. It's crucial for the business, not individuals, to own the intellectual property. Else, the risk of losing ownership increases if key inventors depart the company. While non-disclosure agreements (NDAs) can prevent employees or partners from sharing intellectual property, they expire after a few years. Startups that maintain clear ownership policies from the outset avoid this potential weakness.
Patenting When Budgetsare Limited
In some cases, startups may not have enough funds for patents. They might consider the public-domain approach, where inventions are widely known and accessible. By making the prototype idea public, a startup can prevent others from using the idea, as it's considered common knowledge and not eligible for patenting.
The Linux operating system's code is a wonderful example of this approach. By making the code publicly available from the start, it can't be patented. This open-source philosophy has kept Linux in the public domain for decades and has proven effective in constant improvement.
Securing Early Protection with Government Assistance
Considering which market your invention will be sold in can impact the cost and timing of applying for patents. Filing internationally in countries with lower costs and fewer competitors might yield more significant benefits. In Canada, for example, the government provides guidance and financial support for small and medium businesses seeking patents within their system. This approach can allow startups to establish legal protection at reduced costs, which can be invaluable as they navigate the competitive landscape of the software industry.
- For startups, evaluating the patent potential of their ideas is crucial, as it determines the patentability of their inventions.
- A strategic patent plan is vital for new software inventions, as it helps secure initial protection while preparing applications with solid chances of approval.
- Innovative essence forms the core and foundation of a robust patent, with exceptional uniqueness and deviation from existing protected inventions serving as the basis for a legal monopoly.
- Not every invention deserves the effort of being patented; startups should weigh the protection of their inventions realistically, focusing resources on innovative ideas that are truly marketable.
- Oculus strategically prioritized patenting software over hardware, focusing on the software and hardware combination that made their virtual reality unique.
- Filing patents on distinct parts of an invention can create a more complex legal battleground, making it harder for larger players to make significant headway.
- A well-planned patent strategy roadmap suggests the optimal time to pursue patents, often just before the product launch, allowing companies to protect every exponential dollar in sales as the product takes off.
