Start-up Entrepreneurs & CEO’s: If Your Goal is Investment or Acquisition, You are Probably Patenting the Wrong Things

Exit Strategy
Exit Strategy

Do you treat your patents as a fence or a tollbooth? If you wish for your start-up technology company to obtain investment from or acquisition by a bigger player, you had better understand the difference.

Most start-up technology company entrepreneurs and CEO’s understand that patents can be key to establishing the value of a new business idea. Typically, entrepreneurs and CEO’s such as yourself will engage patent attorneys to build an IP portfolio that protects the start-up’s technology and products to the fullest extent possible. The motivation for this effort and expense is, of course, to to protect your start-up’s idea from use by others. As management of a start-up you may be seeking to build an ongoing business around the patented technology, but often the goal of building a solid patent portfolio is to make your business an attractive target for investment or acquisition by a larger company.

I believe that such an inwardly focused patenting strategy is a misguided approach for companies that wish to obtain investment from or be acquired by larger companies. Why do I think this? Let me use a simple analogy. 

Let’s say you have worked diligently for several months of weekends to get your yard perfect–and it is perfect. When you finish the yard, you realize that if someone walks on your lawn, perfection will be lost. So you put an expensive fence around your lawn–and it is the best expensive fence you can buy: a virtual masterpiece. But what good is the fence if no one wants to walk on your lawn anyway? You wasted all that money on the fence.

The great majority of patent seekers (including those at otherwise sophisticated large companies) believe that patents are best used to keep others off their “technology lawns”. As such, patents are generally focused inwardly–that is, on the patentee’s own technology or products. This is known as “defensive patenting”. Defensive patenting is a tried and true patent strategy, but it can be a poor choice for companies that wish to obtain investment from or be acquired by bigger players. Like the example above, if these bigger players have no interest in walking across your technology lawn, your defensive patent fence is a wasted expense.

So how does a technology start-up company such as yours get the attention of these big players? It is quite simple–by putting a patent fence around the big company’s technology lawn. When properly formulated and executed, this strategy (which is not surprisingly called “offensive patenting”) makes technology or products patented by your company an attractive target for a bigger player. Your company’s patent(s) will reduce or prevent the bigger player’s free movement in its desired business space. Such a savvy offensive patenting strategy effectively requires the bigger player to ask your start-up company for permission to play on its own technology lawn. Your start-up company can provide that permission in the form of a licensing of the patent(s) at issue or by sale of your company to the bigger player. Either way, the your start-up company is benefiting financially from this smart offensive patenting strategy.

Of course, if offensive patenting was easy, smart entrepreneurs and CEO’s such as yourself would already be executing on it in droves. In truth, however, offensive patenting can only be effective against big players through use of expert competitive patent and business intelligence. Such techniques have unfortunately not been readily accessible outside of the large corporate and investor environments.

This is changing, however, as more intellectual property professionals with corporate business experience are focusing more on strategic business issues relating to IP. As an example of such a strategic business approach, I have worked with a startup client using patent filing data analysis to identify where a large company was likely going to be focusing its technology or product efforts in 3-5 years. Together, the client and I will brainstorm a “next generation” improvement to that technology or product. We then will work with the client’s patent attorney to draft, file and prosecute patent applications that are directed toward reducing or preventing the large company’s future ability to freely compete in that business or technology space. The objective is to end up with the client owning patent(s) that would be infringed by the large company’s future business plans. Rather than change its business plans, the large company will pay a patent “toll” in the form of a license or acquisition of the client.

Admittedly, offensive patenting is a bit like looking into a business crystal ball. However, the information needed to successfully execute on this patent strategy is out there and, when collected and analyzed by the right person, it is actually hiding in plain sight. Experts nonetheless believe that those who collect and act on available data are more likely to be successful in today’s data-driven economy. I believe that smart entrepreneurs and CEO’s of startup companies can achieve the investment or acquisition they want for their companies by collecting and analyzing patent filing data to make it necessary for big companies to pay for permission to play in their desired business spaces.

So stop thinking about patents as a fence, but instead as a toll booth. One can usually walk around a fence, but if the toll booth blocks the only road to a big company’s business destination, the toll is likely to be paid.

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