Morris Manning & Martin, LLP

The Patent System is Under Assault-- Startups, Should You Care? Ten Things About Patents that Startups Need to Consider


The U.S. patent system is under extreme assault. The emergence of “patent trolls” has brought attention to issues in the patent system to whole new sectors of the economy that are not used to dealing with patents. The U.S. Supreme Court has muddied the waters on the patentability of computer-implemented and medical diagnostic method inventions, increasing the uncertainty as to patents. Congress passed a comprehensive patent reform bill in 2011 (the “AIA”) that was supposed to improve the system, but it just added complexity and uncertainty. The USPTO’s Patent Trial and Appeal Board (PTAB) has become known as a “patent death squad.” Despite the assaults, the U.S. Patent Office continues to receive record numbers of patent applications -- but at the same time, relying on the AIA and recent Supreme Court decisions, increasingly refuses to grant deserving patents.

Based on all these assaults—is it time to give up on patenting? Perhaps not, but intellectual property strategies are in flux. Companies that have patents, or think they may need patents, will want to consider these ten points about patents: (1) patents assist in enterprise value creation and enhancement; (2) patents signal quality to investors; (3) patents help establish and reflect ownership of technology and inventions; (4) patents can be a weapon to assert against competitors; (5) patents help understand and avoid the IP of competitors and others in the market; (6) patents can provide a vehicle for revenue generation / licensing / monetization; (7) patents facilitate collaborative research and open innovation (OI); (8) patents can help block competitors; (9) the patent laws will continue to change; and (10) although trade secrecy and copyrights offer some alternative protections, there is really no alternative to patents.

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