To Patent or Not to Patent: How to Protect Your Company’s Intellectual Property

By Amy Shim

When there’s competition, intellectual property management is a vital component of a modern business plan. Stolen product and process designs can steal market share and profits from your company, while holding a patent offers exclusive rights to produce and sell an invention and, as a legal declaration of property, also becomes an asset to your business.

A patent may seem like a one-size-fits-all solution to protect your intellectual property, but there are several important caveats to keep in mind before you send in your patent application:

1. Patenting your idea involves publicly releasing your secrets

While the intent of a patent is to protect your invention, the act of procuring one actually involves divulging your design’s inner workings. If this seems counterproductive, at times it can be. All full patents, even those still in the application process, are published online and are available for everyone (including your competitors) to see. If another company decides to rip off your idea, they could steal valuable market share before you’ve become established.

Because of this, some entrepreneurs opt to guard their invention’s secrets and forgo a patent altogether. Search engine algorithms, for example, are not patented processes, and instead remain trade secrets, which provides them better protection than a patent ever could.

2. Applying for a patent is expensive and time-consuming

Unlike copyright protection, patents must be filed legally and accepted by a governing organization. The patent application process, however, can be drawn out and costly for a new startup. Spending tens of thousands of dollars and waiting several years before receiving a patent can be a bigger investment than many startups are able to make. So instead, some startups choose to put their money and effort toward product development. Taking an idea from good to incredible, and achieving overwhelming brand loyalty can provide its own form of protection.

Not ready to bypass the protection of a patent entirely? You can also apply for a provisional patent, a sort of middle ground. This option grants you 12 months of protection, while keeping the details of your invention private during that time. If you choose not to apply for a full patent at the end of this period, the coverage will lapse, but you will have bought yourself another year to develop and market your product.

3. Your patent application could be denied

The requirements for filing a patent are detailed and strict, which is why it’s important to have an attorney work with you. But even with an attorney, there is still no guarantee that your application will be accepted. A great deal of effort and expense goes into patenting a product, and if the application doesn’t go through, it could significantly set back your efforts.

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4. Patents don’t guarantee your idea won’t get stolen

Being granted a patent does not make it impossible for others to steal your idea. Instead, it gives you legal ground to pursue a lawsuit if they do. Many companies with patented products have their designs ripped off by manufacturers and competitors. When this happens, the burden is on the company to hire an attorney and seek damages from the offender. And if the defendants are overseas, that increases the cost of litigation.

When is a patent advantageous?

Although patents may not be the best investment for every inventor, patents can be powerful security for certain inventions. After pouring millions of dollars and years of hard work into a piece of equipment or technology, you want to be assured that your investment is protected.

The key factor in determining whether a patent is worthwhile for your product is functionality. In order to receive a utility patent, you must prove that your invention is novel, nonobvious, and useful. Highly innovative, unique products or processes that have a demonstrable use are good candidates for patents.

With so many variables to consider and so much at stake, it is highly advisable to consult with experts to determine whether a patent would be suitable for your unique situation. Gaining an outside opinion can also give you other useful insights, such as market research that examines the commercial potential of your offering. A third party will also be able to complete an objective and informed SWOT analysis of the strengths, weaknesses, opportunities, and threats facing your company to help you make the best decision.

Patents aren’t inherently helpful or hurtful to a business. The true judge of a patent is whether it is a value-add to your company. If your patented design is protecting your intellectual property and boosting your balance sheet, it can be a beneficial investment. If, however, you discover that your property will be better guarded as a trade secret rather than being publicly disclosed, a patent may not be the best choice for you.

Intellectual property management is complex, but vital to your company’s success, and should be given the attention and consideration that such an important decision deserves.

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