Intellectual property and patent protection for startups


Startup innovation is the engine of the American tech economy, and every startup must rely on legal advice to avoid early mistakes with long-term implications in terms of protecting their intellectual property. For example, an intellectual property right, patent protection, is important for a startup because a patent is a legally sanctioned monopoly that denies competitors access. Patents can also serve defensive purposes, helping the startup defend against patent infringement attacks by allowing a competitor to risk a counterclaim. Furthermore, according to a 2008 Berkeley study, Patenting by Entrepreneurs: An Empirical Study67% of venture-backed startups said patents are critical to them to secure investment.

While the benefits of patents and intellectual property protection are widely recognized by many startups, there is a gap between the services required and the services provided in the legal industry, causing many startups to forego legal advice due to cost concerns. In today’s pre-revenue tech environment, not every company has the resources to have an in-house IP or patent attorney, and other established companies are so large that their in-house IP advisor manages multiple outside firms representing their Support patent portfolios and international filings. Thus, the gap is being formed between a start-up and an established company’s access to intellectual property protection, contributing to the business environment that has encouraged the concentration of power in a few technology companies.

In response to this gap in the market and the cost-conscious nature of modern start-ups, lawyers have begun to change their approach from the traditional legal advice model. One such approach, the external in-house consultant model, is simple: the external in-house consultant serves as a dedicated liaison to the startup in an in-house capacity by aligning closely with the startup’s internal IP protection strategies and priorities. The external in-house counsel not only meets regularly with an internal General Counsel, but also with the management of the startup as well as with inventors, engineers or designers within the startup who are closest to the innovation lead of the startup. This creates a single point of contact for a startup to interact with, which serves as a unifying force for all members of the startup and eliminates many of the costs and inefficiencies associated with multiple touchpoints.

Additionally, perhaps the greatest benefit of the external in-house advisory model for a startup is the startup’s opportunity to receive advice from an attorney who understands the inherent competitive advantage that comes with prosecuting the right patents and protecting the startup’s most valuable assets is. By focusing on the right patents, a startup can further reduce costs and focus its resources on its goals. This allows for more proactive engagement with the startup’s IP portfolio, as the entire startup knows the scope of such a portfolio.

While the specific services provided may change, the constant of the external in-house counsel model is the alternative fee arrangements that are facilitated. Some examples of alternative fee arrangements may include monthly reserves for pursuing patent applications, a flat fee charged monthly, a flat fee charged per project, a subscription-based model, or a per-hour project fee structure with the billable hours capped at a specific amount per period, e.g. B. one month, or are limited per project. However, the alternative fee can be set between the external in-house attorney and the startup, the ability to be flexible on fee arrangements that work for the startup and not to adhere to traditional fee arrangements allows attorneys to better their startup clients to meet in the middle to create a better partnership for both parties.

What these different offerings and prices have in common is the ability to cater to startups that are more discerning in terms of value and willing to shop around. We understand all the nuances of patent prosecution, both software and non-software, and are flexible and willing to work with startups to help them achieve their goals.


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