* PRODUCT-BASED PATENTING – The Second Most Important Concept For Startups – Simplifies Patent Law Into Two Requirements

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For startups, the two most important patent law concepts are:

The product-based patenting approach simplifies patent law into two requirements.

(1) REQUIREMENT 1 = BETTER/FASTER/STRONGER. First, you must have a “product” (which we’ll define later) that is better/faster/stronger than the competition using features/benefits that you define, both in the present (i.e. the “prior art” section of the patent application) and in the future (i.e. the “other embodiments” section). All startups have this, which is why they started the startup.

(2) REQUIREMENT 2 = SECRET SAUCE. Second, one of those features must be unique to you, not just in your market but in all markets. We sometimes call this feature your “nugget of newness” or your “secret sauce.” It’s the thing that you would keep a trade secret (if you were not pursuing patents). This is the more challenging requirement, and it’s where we spend most of our time debating with the USPTO. Let’s say your product has four features: A, B, C, and D. The patent office can find three features (A, B, C) in a competitive product, combine it with feature D in an unrelated product, and then declare the the combination (A, B, C, D) is “obvious,” and then deny your patent. So when we are debating with the patent office about obviousness, we say something like this: “That D that you found is not the same as our D. Even if it’s the same, there is no reason to combine D with our A, B, C. And even if there is a reason to combine, we have E in our back pocket.” So you can always get a patent by adding more elements (E, F, G) to your product, but more elements makes for a more narrow patent. So the question isn’t WHETHER you can get a patent, the question is whether or not it’s WORTH IT (and that’s what our patent search attempts to reveal).

(3) WHAT IS A PRODUCT? Finally, let’s define “product.” A product is not necessarily something that you sell to a customer for money, it’s not necessarily something that is customer-facing. This is best explained by two examples, one old and one new. The first settlers of the American West took coffee beans with them, cooked them, ate them, threw away the liquid. That’s called not knowing what your product is. More recently, software engineers for Slack, a failed gaming company, created an internal communication tool for its game developers “over the weekend.” (As an aside, we are super suspicious of anything that software engineers create “over the weekend.” Facebook’s photo-tagging software, Google Reader, Twitter – all created over the weekend.) So we encourage all startups to take a broad view of what a “product” is. You can start very broad by putting a box around the company and looking at its inputs and outputs. And if your products are intangible (like software), then know that version 2.0 (not yet launched) is separately patentable over version 1.0 (launched). So is version 1.1. So that new feature that you are baking into the code going from 1.0 to 1.1? That may be your D that gets the 1.1 product over the patent hump. So we are always encouraging startups pursuing patents to “look for their coffee beans,” so to speak.

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