Michael J. Foycik Jr., Esq.

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So you're starting a new business, congratulations! The sky's the limit. If your new startup business is based on a new idea, a new concept, or a new invention, then you'll need something first.

What will you need for success? At least one thing: something unique that you own. The key word here is “own” and that includes intellectual property: patent rights, trademark rights, copyright rights, and trade secret rights. Otherwise, your initial success can be copied or taken by anyone.

You should have a pending application of some type. That is, unless you already have an issued patent or a registered trademark, though a startup is unlikely to have either one. What you can have is a pending application: a pending patent application, a pending trademark application, or both. For some businesses, a copyright application is needed instead of, or in addition to, a patent application.

A pending application documents ownership, as of the filing date. For patent applications, the law now is first-to-file. If you wait to file a patent application, anyone can take your idea and file on it. So be the first! If you are first, then your rights are documented by the filing of the application.

Costs can be kept fairly low on the patent side by filing a provisional patent application (PPA), which gives true patent pending rights for one year, which can give priority rights for any later filed utility patent application. The PPA also documents trade secret rights when the subject matter is kept confidential, and such rights can be valuable.

A pending federal trademark application also documents rights. What's in a name? Sometimes an entire business depends on a catchy name. Even if there are no other types of rights, just having trademark rights can mean success. Even a pending trademark application can be valuable!

Investors look for rights of some type. Pending rights are just fine in most cases. Otherwise, what are the investors getting for their money? This is typically also true for crowd funding. If you own nothing, your and your investors may end up with nothing.

Finally, if possible, consult an IP attorney early.

The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.