Product Launch Checklist: Patenting Strategy

As a startup developing a new product, the question of whether or not to patent inevitably arises. 

When a venture is early stage the priority is hunting product-market fit and fine-tuning commercial strategy. 

So you wont yet have a mature IP strategy to guide you at this point. 

Perhaps you've even delayed launch, because you're concerned about getting the IP wrong. The worry is you're releasing all your technical innovation into the world without adequate protection. What is somebody else adopts your ideas and tech, and just outcompetes you using greater resources?

This is a common scenario, but you should not worry. 

Typically, you've developed a product with a decent collection of new features, and the calculus of what to do in terms of patents can seem overwhelming. 

The plan

There are a lot of factors to think about, but here's one approach. 

You want to create an inventory of your innovative product features. Even include those ideas that are not yet fully developed, but have some near-term potential, both technically and in terms of what the market may want. 

Using this inventory, it's a matter of breaking down these features in terms of ratings and rankings. 

What I've found works well is the following—

• confining the analysis to a 'top ten' in terms of key factors of concern
• using subjective ratings, high-medium-low for example, though I also include high-medium and medium-low 
• create some simple scoring system, using a ten x ten scoring rounds out a 0–100 percentage scale
• overlay a traffic light rating system, so over 50% might represent patent candidate features

The art here is make the analysis just as involved as is necessary, but no more. You want to arrive at clarity in your thinking, not be overcome by paralysis by analysis. The objective is you can be confident in your choices, which are justified by clear and transparent reasoning. What you wany to entirely eliminate is the type of circular thinking that never progresses because you're trying to thinking through too many things at once. 

A template helps

Where to start? Here's a general purpose example to get you started: 

• 1. What is the near-term commercial importance? Immediate revenue protection concerns are the issue here.
• What is the long-term competitive value? You don't want to forgo protection for what may be a key competitive advantage.
• How likely are competitors to independently develop this feature? Do you anticipate that competitors will 'inevitably' come to realise your way is the best way? 
• What is risk of competitors reverse engineering this feature? Is it easy for competitors to duplicate your work from the product, or is there a lot of hidden knowledge. 
• Is copying of the feature easily detectable? If you're never going to be easily detect infringement, it does blunt the motivation to patent a technology. 
• Is the feature a real roadblock to competitors? Are there good enough alternatives that competitors can adopt without great penalty, or will your feature become essential. 
• Does the feature provide meansingful differentialtion? Does the feature actually matter to customers, or is it a wash? 
• Is the feature central to ongoing product development? Are there likely to be protectable follow on innovation in the same area?   
• What is the brand or marketing value? This goes to the softer value factors around perceived category leadership or authority in 'patent pending' or 'patented'. 
• Is there licensing or sales potential in the technology? Licensing can be important in some cases, as patents enable such deals.

That's quite a list. Another thing: adapt to your siutuation. There may be just five concerns you're identified as determinative. Or three key factors that should be given double weight compared to the others. You get it.   

Putting it together

An example spreadsheet layout is presented below.

With some numerical ratings, you can screen on ranges to see what features cluster together. It can be surprising the insights you crystallise through the simple exericse of just getting it all on a spreadsheet.

Often the experience is you do find a few features that are closely associated in a technical sense, and are all hitting the higher ratings. These can at times by consolidated into a single patent application, or perhaps two—three seperate patent applications which give you solid coverage over your technology offering. 

Aside from the ratings, there is also room for recording your more gut-level preference. Besides patenting, there are options around maintaining confidentiality / trade secrets, or defensive publication.  

Overall, it usually doesn't take long to reach a view, so you can act on your chosen strategy before releasing your product launch.