If you’re a small business and you hear the words “you need an attorney”, you likely envision buckets of money flying out the window. However, protecting your intellectual property as a small business, startup, or pre-funded company doesn’t have to be difficult or insanely costly.
To make IP protection within reach as a small business, it comes down to a few smart tips. First, of course, is taking a proactive approach to protecting your innovations. Then, there are DIY measures that can save you money in filing patents and trademarks. Also crucial is finding the right IP attorneys that are proficient with and employ cost-saving systems (such as AI — more on that below) and pass those savings along to you.
Take a Proactive Approach
To minimize costs and time needed both now and down the road, you need to be proactive. Patents protect your ideas, not a finished product, so you may need to start working on your IP protection even before your company is formed. Beyond that, a lot of what you can do on an IP front can be done in advance. For example, a lot of companies don’t realize that they can file a trademark application before they are actually using the mark. That is something that can be done really quickly, right off the bat, and most times for a fixed cost.
Being proactive rather than reactive keeps things running smoothly, and it makes IP protection less expensive. This foresightedness makes it easier for attorneys to control costs and give fixed prices that are of higher value to a client.
If you were to instead come to your IP attorney and say, “I’ve been using this brand name for 10 months and we realized someone else just filed for the same mark,” guess what? That’s an emergency. In the patent world your IP becomes part of the public domain if not filed within a year of you starting to use it. So, in that same scenario you’ve only got a couple of months left before your IP is dedicated to the public. That’s a bigger emergency.
Naturally, that’s going to cost more. Your attorney has to drop what they’re doing, reformulate their plan and engage in more panicky back-and-forth with you.
When you take a proactive approach to protecting your IP, you take that frantic scenario out of the equation. You’re not putting out fires. You’re not reacting to potential bar dates coming up.
Being proactive not only saves time and money. It also prepares you for investors.
We commonly hear from clients that we talked to months before who come to us out of the blue and say that they’re in the middle of their Series A and their investors are asking if they’ve filed patent applications yet.
Investors will always ask this. When investors and banks come at you, they want collateral. They want something to take a security interest in if they’re going to lend you money. In a smaller, early-stage company, especially those in the tech field where you don’t really have any hard assets, the easiest thing to use is intellectual property for that collateral.
You need to have patent and trademark applications filed with the trademark and patent office in order for someone to invest in your company. Every bank is going to require something like that. Every single one. You need to have that in place.
Basic IP DIY
Your attorney should empower you to do some of the basic IP legwork work yourself — tasks that will save you money if you do it ahead of meeting with an attorney. For example, if you’re preparing to file a patent, you can spend time doing your own prior art search. This can potentially save you thousands of dollars and even help you improve your innovation.
The same applies to determining whether you have the freedom to use your chosen company name. It sounds strange coming from a lawyer, but a simple Google search gives a good high-level first impression of whether a name is available for use as a trademark.
Related: 5 Common Issues with DIY Trademarking
Finding the Right IP Attorney
Ask about a firm’s package fee structures to see what they can do for you. Some firms will give you a package deal, for maybe one provisional application plus one trademark application. Lumping different projects together, even though they are distinct legal inquiries, can save time and money. If an attorney is willing to sit down one time and get all the information needed for your separate projects, that saves everyone time and results in lower fees.
You want to find a firm that’s not just lowering costs and doing fixed fees, but also a firm that is taking advantage of modern, smart systems like the AI that Neugeboren O’Dowd uses (which I wrote about earlier). This allows your IP attorney to focus on the work product output instead. Look for a firm that’s using these types of systems and approaches to pass cost savings on to you. If you’re able to find one, you can get some key pieces of IP protection on file and in place for a fair, reasonable cost, and pretty quickly.
What If I’m Already in Hot Water?
Let’s say you, as a small company or startup, didn’t take a proactive approach to protecting your IP. Now you’re faced with a potential legal case tied to your IP. What can you do then? Are you sunk?
The worst-case scenario in this instance would be if you’re a small company and you receive a cease and desist letter from a larger company or a patent troll, someone who is just asserting IP that they don’t actually practice. Then come the difficult decisions.
Related: Are You Being Punk’d By a Trademark Spammer or Patent Troll?
The one thing you can do as a small company is an infringement analysis to make sure that what the plaintiff in that case is asserting is actually accurate. It takes little effort, especially if you discover that the assertion is inaccurate. Even though that might not make the risk of a litigation or lawsuit go away completely, at least you’ve looked into the claim and you have an answer for any type of investor or other party that is doing diligence to investigate your company.
Or, if you do look at the claims and they may have some validity, then your patent attorney can help you tweak your product so you don’t include the key elements of another patent in that product. You basically “design around” another patent.
However, just note that taking proactive measures like those discussed above is much cheaper than having to do a design around, but a design around can also be much cheaper than a litigation.
Ready to Get Started?
Protecting your IP as a small business or startup isn’t as hard as you may think it is. You can make sure your IP is safely protected with minimal fees and time when you’re proactive, you know what you can DIY, and when you have the right IP attorneys on your side.