“We almost went bankrupt 3x and I preferred that to the pain of patenting. I never want to go through the patenting process again.”
The process seems simple — protect your unique technical innovation that differentiates you from competitors. Hire a lawyer. Outsource all of it.
The reality is so different.
It’s impossible to know until its too late whether you should even go down this road.
To start, you’ll usually: have a short intro meeting with your attorney, sign an engagement letter, pay a retainer, fill out an invention disclosure form, share your technical documents and prototypes, have an invention disclosure meeting, and then it’s off to the races.
You’ll have a few rounds of back-and-forth to write, re-write, and review dozens of pages. Then you’ll submit your completed application to the USPTO and wait 12-18 months for a response.
Almost always, that first response is a rejection.
You’ll then re-up your retainer, consult with your attorney, respond to the rejection by filing a continuation or amending your claims, and wait another 6–12 months for a response…or you’ll abandon your application.
Yes, it takes two to three years on average to get a patent. Yes, you’re paying your lawyer $10K+ to help you (usually $20K+ all-in). Yes, you get great guidance and legal process help. Yes, you’ll still have to do a lot of heavy-lifting yourself.
No, it doesn’t mean you’ll get your patent. You’ll probably run out of cash or get frustrated before then.
“If your patent is granted on the first try, it probably isn’t worth much.”
It’s a popular adage among patent lawyers and certainly backed-up by the numbers: around 90% of patent applications fail on the first try.
Imagine if your surgeon’s success rate for a routine operation was 10%!
Although the rules, procedural steps, formatting, and claims drafting requirements are numerous, just four general criteria need to be met: be useful, comprise of eligible subject matter, be novel, and be non-obvious.
That’s it.
As a founder, you’re solving a problem others can’t see in a way that others haven’t imagined. You’ve checked at least two (probably three) of these boxes already. Let’s get that patent!
So why are such poor stats universally accepted?
“I blew half of my funding round on legal fees instead of on building the business.”
Patent attorneys are exhaustively thorough. They prefer to include a lot of information in your patent’s specification so that you have lots of material to draw from if (or rather, when) your claims are rejected or narrowed the first time.
It makes sense — the risks of getting it wrong can be significant, especially for larger companies.
The intention for many attorneys with the first submission is to gather information. The more your attorney knows about the cause of your examiner’s objections, the easier it is for them to react and respond. The second (and possibly third) round are where your patent attorney will shine in getting you your patent!
What isn’t often discussed is how much legal bills climb and how much longer the process takes as a result of pursuing this strategy. This isn’t a problem for large companies. For startup founders with under 24 months of runway, it’s significant.
A granted patent can help you close your funding round up to 76% faster and boost valuations by up to 10x, but you’re most likely not resting your hat on it.
The takeaway: the patenting ecosystem isn’t built for founders who need a cheaper, faster, and easier way of protecting their IP.