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Patenting can afford its owner a superpower, a power not normally permitted under law, the right to hold and conduct monopoly.  However these superpowers are not always a blessing.  They have been the downfall of many organizations that find the cost of defending this monopoly greater than its value.

Patenting is a time consuming, expensive process that can yield significant rewards if done correctly.  That said, patenting is not necessarily the best strategy for every technology or every opportunity.

Some factors to consider are:

Protectablility – Can you protect your intellectual assets through other means?  Whilst a patent last 20 years, a trade secret can last as long as it remains a secret (Eg. The Coca Cola formula).  There are a number of techniques that can be used for “Black Boxing” your technology so that you hold the key, and your customers and competitors cannot obtain access to it.

Jurisdiction – Where do you want to protect your intellectual assets?  If, for example, you had a technology for manufacturing a product, would you protect your technology in key manufacturing jurisdictions, or would you protect it where the products were sold?  Particularly with legal protection regimes, such as patents, your “superpower” only applies in those jurisdictions where you have received a granted patent.

Cost – Are there more cost effective ways of protecting your intellectual assets, or does a patent offer the best risk/reward trade off?    If you are patenting in several countries, patent costs over 4 years are likely to be greater than $100,000 including translation costs.  If you are cash constrained and unable to access funding through grants or capital raising, then patenting could be your Cash Flow Kryptonite.

Time – What is the lifecycle of your technology?  It can take 5+ years to obtain a granted patent in the US.  Provisional patents are of limited value as the monopoly has not yet been granted.  Whilst a FTO (Freedom to Operate Search) can add value to a provisional patent, certainty of your “superpower” only exists after the patent has been granted.

If you are planning to patent, do it early.   The patent process can be long, slow and expensive, with costs starting at a relatively low base and increasing following year 1 and into year 2.  The earlier in your development process you consult a patent attorney, the better.  The longer you wait, the more risk there is of information leaking into the public domain, invalidating your patent.

Mission HQ takes a commercial approach to intellectual asset protection and can advise you on the most appropriate strategy for your opportunity.  As we are not a patent attorney firm, we are able to provide commercial, unbiased advice on protecting and managing your intellectual assets.