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It is not uncommon for startup and early stage companies to be asked by investors if the product the company is taking to market is patent protected. This is not an unreasonable question, because strong patent protection can increase corporate value through higher valuations by venture capitalists or acquiring firms.

A patentability search is often an overlooked but, important step in the patent process. A search will reveal whether your idea has been publicly disclosed or is already patented. Conducting a patentability search as a first step is a prudent use of startup funds over forging ahead with a patent application only to determine thousands of dollars later that your idea is not patentable.

There is much on-going discussion, as well as a lot of confusion, about whether software and software products are patent eligible or not. More often than not, the discussion could better be framed as to whether you should go to the time and expense to patent a particular software product.

It is important for a founder/innovator to be clear on the strategic differences between a patent and a trade secret, and which one is best for your situation.

When seeking a patent professional with whom you can partner, we cannot stress enough how important the upfront due diligence process is. You owe it to yourself to take the necessary time to determine which professional will be the right fit for your company’s circumstance.