Articles

Entrepreneurs tell me that they build their businesses on ideas.  The ideas might tangible—like a new product or feature—or might embody a vision of value.

Unfortunately, ideas can be stolen, and copycats can undercut innovators on price.  “Intellectual property” rights—trademarks, patents, copyright, and trade secrets—are designed to protect those things that make you or your company unique in the marketplace and keep them unique.

Patent law protects new, nonobvious, and useful ideas—whether products, features, or processes.  Patents offer innovators the right to stop others from making, using, selling, importing, or exporting their inventions in exchange for telling the world how to make and use them. In the U.S., patent rights can only be enforced after they are granted by the U.S. Patent and Trademark Office (PTO) at the end of a process that starts with one or more applications.

As an emerging business makes discoveries, it is often wise to file “provisional patent applications.”  Provisional applications do not become patents, but serve as a kind of timestamp if the inventor chooses to file a nonprovisional application within the next year. The PTO then treats the nonprovisional application as if it had been filed on the earlier (provisional) filing date.  A provisional application, once on file, gives the company comfort to work with others who could potentially take the technology. The threat of a patent that might come from a patent application could stop the thief from even trying to compete using their copy of the invention.

In addition, as you continue your research and development efforts during that one-year period, you can file additional provisional applications and roll them into the same nonprovisional application.  You can craft coverage in the nonprovisional application near the end of that one-year period with the latest knowledge of how your product and the marketplace are developing.  You can file additional patent applications to cover improvements in your own product as they are conceived (or as they are about to become public), and can target improvements that you think of to block development by competitors.  This strategy can maximize the sphere of uniqueness around your company’s products by preventing others from adopting the same features, systems, and processes.

Of course, not every company can allocate cash to the patenting process early in development, and not every market can withstand the multi-year delay typically encountered between a patent application filing and issuance of the corresponding patent.  Fortunately, cost and coverage timelines can be managed to maximize the protection and value of your unique innovations.

To build your company on ideas, protect all of the forms of your intellectual property.  Work alongside your patent and trademark attorney to develop a strategy for managing your copyrights, strategically registering your brands, guarding your trade secrets, and filing patent applications on your inventions. By excluding competitors from copying your unique characteristics, you can turn your attention to your next great idea.

Matthew Schantz is a patent attorney and partner on Bingham McHale's Emerging Business Team.