So You Just Invented the Best Product the World Has Ever Known

Miller & Martin PLLC Alerts | May 19, 2017

by Neil Brunetz and Stephen Stark

You spent all this time creating the perfect product and, in order to make your startup viable, you need to get the product to market. But what have you done to protect this lifeline of your new business?

There are several steps you can take to reduce risk for a startup. The first is properly investigate and protect your intellectual property rights through patents, copyrights, trademarks, service marks, etc.

The ability to protect your product through patent, copyright, trademark and service mark identification can give your company a legal right to defend claims, as well as provides potential investors an avenue to conduct further due diligence regarding the real value of the company and product.

Patents can protect any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof. Patenting software in particular has become more challenging, but is still possible for some technology. If your technology is patentable, government fees alone can be $5,000, or more, over the life of a patent and most companies spend 2-4 years and $12,000-$18,000 to obtain a patent. There are procedures which can shorten the normal period to obtain a patent, but at an elevated cost.

On another hand, a copyright protects an expression of an idea, whether that be a software program, text or other works of authorship developed by the company. Registering a copyright can be very straightforward and relatively inexpensive (as low as $35 per application) when companies proceed to register directly through the Copyright Office’s website.  

Further, trademark, or service mark, rights can accrue through use in the marketplace under common law and through registration. The Lanham Act, a federal statute, provides for the possibility of enhanced statutory damages, as well as possible attorney’s fees for certain improper activity related to certain registered trademarks and service marks. Few, if any, state registrations or common law trademark/service mark rights provide for anything other than possible recovery of actual damages.

While the cost to register and enforce intellectual property rights may prove to be expensive, the value of the intellectual property rights to the company or investors may make the expense worth the investment.

Depending on the product, these steps can create minimal to significant company expense, but protecting the lifeline of your startup or emerging business should be one of the highest priorities.

For questions regarding this issue, please contact Neil Brunetz, Stephen Stark or any other member of our Emerging Business Group.