Investing Against Patent Trolls

Whether or not it is wise to invest time and money to apply for a patent, trademark or copyright on your startup’s core intellectual property (IP) assets depends on the nature of the IP itself, your industry and its competitive dynamicsand the contribution IP is expected to make towards your startup’s ultimate success.

For instance, in certain industries (biotech or semiconductors), having a patent around the core IP can be crucial to even getting the first set of investors tothe table. In some other industries, such as consumer Internet or software, I believe patents are typically an afterthought and a nice-to-have luxury as insurance against future lawsuits.

In yet other industries such as fashion and creative arts, patents are rarely mentioned and instead trademarks and copyrights take center stage.

It is critical to have a realistic picture of the true costs of obtaining IP protection in terms of time, money, team distraction and public disclosure. Only an experienced IP attorney in your field can truly assess these costs.

To give a general picture, patents tend to be the most expensive and difficult form of IP protection to obtain, and can easily cost well over $10,000 and involve two to four years of back and forth with the US Patent Office. Trademark and copyright work can be registered a lot quicker and typically costs $1,000 or less.

It’s also important to consider the cost of patent trolls.

Every entrepreneur has read at least one horror story about patent infringement lawsuits brought on by non-practicing entities aka patent trolls. A recent survey estimated that in 2011 alone, companies spent $29 billion defending themselves against these suits.

So, if you are planning for success, you may need to create defensive patent strategies that would make it less likely for your startup to be entangled in expensive litigation with patent trolls.

To avoid the expensive costs, you can consult with competent patent counsel and devise a strategy that would both minimize the upfront cost to you and provide you with sufficient downstream protection as your company grows and raises its profile.

The good news is that the legal marketplace in the US is currently undergoing a renaissance and you have several options to consider:

Law Firms – Large, established firms will often have an IP department with highly trained and experienced practitioners. The typical fee deferment that some law firms offer promising startups may or may not apply to patent work because of the high demand patent practitioners face at law firms. But it is definitely worth talking to some firms to get a sense for style and points you need to consider as you evaluate your options.

Tip: Create a list of the top 20 law firms in your area and contact attorneys who specialize in patent work.

Online Legal Marketplaces – The recent trend of online legal marketplaces makes it easier for entrepreneurs to quickly find legal help. These online platforms typically enable you to tap into an experienced legal workforce that has a much lower overhead than law firms and can offer you better pricing and service, as practitioners on these platforms highly value their public client ratings. If you want the flexibility of working with a sole practitioner, and want to potentially save money on your hourly rate, search online.

Tip: It takes only a minute to post a request on a legal marketplace such as UpCounsel and receive free quotes from attorneys. A quick search for patent attorneys located in California or New York alone delivers dozens of highly skilled patent legal professionals.

Many entrepreneurs fear asking for legal advice because they don’t believe they can afford it. It is best to ask for help and determine a budget (deferred fees or hourly practitioners) that works for you, rather than to risk making costly legal mistakes.