Intellectual Property for Start-Ups

By Debby Winters

I work with start-up companies at both early and late stage. One of the questions that I frequently get when I mentor these entrepreneurs is whether they should file for intellectual property (IP) protection for their innovation. Even though it may be a drawn-out process, in most cases it is critical in their business plan to protect their IP.

On average, it takes about two to three years to complete a patent application process and obtain a patent in the United States. Engineering patents are likely to take longer, with average wait times clocking in at almost 4 years. But that time could make the difference in getting investors or not, since the most valuable asset a start-up company has may be its intellectual property, rather than its physical assets.

In addition to filing for patent protection, a start-up company should consider obtaining trademark protection for the name of the business and/or names of products or other parts of its services. Many times entrepreneurs will file both word marks and logos, especially if they have invested time in designing a unique logo. The time for trademark registration can vary from one year to several years but most trademarks that get through the process do so in about a year and a half.

Other intellectual property protection can come in the form of copyright protection for designs, software, or other artistic renditions. Design patents are sometimes an alternative to copyrighting. Another alternative to patent protection can come in the form of trade secret protection. Trade Secrets are not filed with the United States Patent and Trademark Office or with the Copyright Office; rather they are kept a “secret.” That offers many advantages and disadvantages, in keeping it a “secret” and keeping the protection. Trade secrets are not filed at all with any agency. The owner of the trade secret takes extra precautions to make sure no one finds out the “how-to” of the innovation under protection. The biggest advantage to trade secret protection is the cost-savings. Since no time is spent preparing a patent and no filing fees are incurred (same with trademark costs), protection of the trade secret is much less costly. However, since there is no governmental agency to file with, once your trade secret is infringed you have less enforcement power behind it. Once a secret is out, it is out. This can be a huge disadvantage. One of the best known trade secrets is the recipe for Coca-Cola. It has been a closely held trade secret for years with only a few who know the formula.

If you think you have an innovation that could use IP protection, seek advice from an attorney that specializes in Intellectual Property.