Patent protection for startups
Which property right is the right one?
The first step usually involves knowing the different types of property rights (trademark, design, patent and utility model) in order to be able to evaluate what is relevant for the specific individual case.
Patent protection is only possible for technological inventions, is limited in time to 20 years and is associated with effort and high costs, especially when it comes to international applications.
Significantly less expensive is trademark protection (e.g. product and company name) and design protection (e.g. design of a product). Their rights can be renewed as often as desired.
Weigh the benefits
Startups in particular should always weigh both short-term benefits and long-term benefits when applying for IP rights, and both short-term benefits and long-term benefits should consider the likelihood of each occurring.
A patent application, for example, can be a good instrument for convincing investors in the short term. In the long term, it promises extensive protection for an invention if the patent is granted.
A patent application is ideally preceded by a thorough patent search. One should try to understand why the invention to be claimed is really new and describe what exactly it consists of or what the patent should refer to.
This is usually very costly and time-consuming - however, it helps to only incur the costs for the patent procedure if there are actually realistic chances of obtaining patent protection on the invention later on.
A good patent search also helps to convince third parties of the chances of patent protection at an early stage.
Such a search can also be used to gain knowledge about whether relevant patents of third parties exist that might be tangential to the implementation of the invention.
By applying for a patent at the German Patent and Trademark Office (DPMA), one then obtains for the invention the chance of an exclusive right to the invention for a certain period of time.
Depending on the financial situation of the start-up, the next step should be to develop a strategy for which other countries patent protection is relevant and should be obtained, because international patent applications are often complex and costly.
When considering filing strategy, one should first consider a PCT application, i.e., a patent filing under the Patent Cooperation Treaty (PCT). This is usually a cost-effective option if one wishes to protect an invention with patents in a plurality of countries.
This procedure provides a uniform procedure for filing a patent in 146 member countries. With the help of a PCT application, one has 30 months from the date of the first application before the application must be filed in the individual countries (= national phase).
This offers the advantage of gaining time as a start-up, for example, to further develop the invention and find investors.
From the point of view of a start-up, it can be quite time-efficient and cost-saving to involve a patent law expert, both for advice and research before filing a patent application and for the management of the IP portfolio that then exists.
Regarding Justus Kreuels:
Justus Kreuels, German and European Patent Attorney since 2011/2012, studied mechanical engineering at the TU Munich and the RWTH Aachen. He is co-founding partner of karo IP. A main focus of his practice is the enforcement of intellectual property rights in the field of mobile communication, Internet of Things (IoT), robotics, etc. in Germany.