Friday, August 8, 2014

Before Starting a Business, Answer This Question First: Who Owns the Invention?

In my earlier blog, I suggested that an inventor/entrepreneur must ask and answer five questions before deciding to start a new business.
Here is Question #1: Does any other person or entity own this idea, invention, or innovation?

My comments and answer.  An idea by itself is not legally protectable unless kept as a trade secret (and not made public somewhere else) and even then another person or entity may come up with the same idea thus negating its value as a trade secret. An idea should drive further thought and, ideally, the creation of an innovation, a way of solving a new or existing problem differently and in a better way.  The innovation should manifest itself, for instance, as a product that offers improved benefits or profitability. The innovation may also be a new or improved service or manufacturing process. The innovation must involve the development of technology that is new and unique.  Innovations are best secured in the form of a patent though some may be better preserved as a trade secret. For something to be patentable it must satisfy a number of requirements (the subject of another blog), but the patent basically describes an invention.  Patents are property and assets and offer important legal rights and protections for its owner.

So, the answer to Question #1 must be NO, of course, but the most important part of the question deals with the question of whether the invention is owned (and patented) by another party. The inventor/entrepreneur must be absolutely certain that any technology to be developed based on the idea, invention, or innovation is unique and provides the underpinning needed for securing legal protections (e.g., patents, software that may be kept as a trade secret, or perhaps copyrighted).  This means the entrepreneur and patent attorney must perform a good amount of due diligence on technology and patents before having certainty that the answer must be NO in order to proceed.

Looking forward, if an entrepreneur anticipates taking-in professional money, then it should be expected that investors will diligently research competitive technology positions especially the patent landscape. For investment, the technology and legal positions (both current and anticipated) must be robust – reducing technology risk to near-zero is a prerequisite for investment.
All questions and contributions are welcome.

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