Anyone who has led a technology company or been in the startup scene will tell you that most startups share a number of challenges. Key among them is the need to prove to investors and potential customers that what the company offers is unique and that barriers to entry exist that preclude anyone else from encroaching on their idea or market. As a co-founder and CTO, I have been involved in numerous pitches and discussions, both with investors and with customers, where we have had to demonstrate how our technology, approach and business model are unique. Based on this experience, I have come to appreciate the value of a patent.

If you go the patent route, it’s important to do it properly from the outset. Filing a poor patent, even a provisional one (more on this later), can end up costing so much that sometimes it’s worse than filing no patent at all.

Jumping in

If you’ve invented a solution to a problem that differentiates you from the competition or provides a competitive advantage, seriously consider filing a patent application before making your solution available to the public. In many countries, public disclosure prior to filing a patent application can make it more difficult to obtain or enforce a patent.

There are three main types of patent applications: the provisional, the Patent Cooperation Treaty (PCT) and filing a full patent application directly in the country of your choice (usually the U.S., but often in Europe or China). Filing any of these applications allows you to mark your product as patent pending. A provisional application never gets examined and never matures into a patent, but it acts as a placeholder and gives you a one-year grace period to file a PCT or a full patent application that will date back to when you filed the provisional.

Provisional applications are generally recommended for technology that is still under development and technology that a company wants to test commercially before investing significant resources in obtaining patent protection. Most startups file a provisional application first. It testifies to the fact that your company filed the specific patent for a certain technology, which is critical in light of the U.S. patent system switching from a first-to-invent to a first-inventor-to-file system in 2013. While the requirements for filing a provisional patent are less stringent than those for a full patent, it’s best to file as robust an application as possible. If you do decide to file a provisional application, do it as early as possible so you avoid being locked out by someone else who files first.

Again, this very much depends on the stage of your company, your goals and how developed your technology is. At my company, we realized that we could skip the provisional step because we knew the exact details of our algorithm. We were ready for the full patent and decided to file it in the U.S. even though we founded the company in Israel. We chose the U.S. specifically, as each country has its own unique filing system, and this was where our market was concentrated initially. It also gave us time to roll out our patents to other countries while we focused on the U.S. market.

Do Your Due Diligence

If you have an idea, search the patent database to make sure it’s original. A key step in filing patents is searching for “prior art” or “any evidence that your invention is already known,” noting that: “prior art does not need to exist physically or be commercially available.” It can be so broad as to mean that someone else has described, shown or built something that contains technology similar to your own.

I recommend doing this search yourself, or at least starting it (professional companies, including law firms, offer this as a service). There are compelling business reasons for this: it gives you a great feel for what else is out there, the state of the market, cutting-edge technology and potential competitors. A great place to start is Google Patents, but just remember that provisional applications won’t show up until they are filed as full patent applications and then published, which usually takes about 18 months from the day the provisional was filed. Just because you can’t find it doesn’t mean it doesn’t exist, unfortunately.

To Self-File Or Not To Self-File?

As mentioned before, the resources required to file a patent (time, cash, energy) are significant. You will be tempted to file your application yourself or with nonprofessional help, particularly if it is a provisional application.

While this is technically possible, I would generally recommend against it. Every situation is unique and a lot depends on what you want to achieve with your patent, but overall I don’t think most companies have the bandwidth to dedicate the time and expertise needed to produce a thorough patent that will provide benefit in the long-run. A solid patent has to be defensible. It needs to be well written from the outset. Don’t skimp on time or money to ensure a good, strong patent.

Pivots Happen

In a fast-moving business environment, with major pivots and new features implemented on a regular basis, try to ensure that your patent filing is kept up to date to take these new developments into account and to keep yourself protected.

Patents take time. On average, it takes more than two years for a patent to be granted by the U.S. Patent Office. A lot can happen from when you first file to when you receive your patent, so it’s important not to think that because you’ve filed, you’re covered. Any weaknesses or gaps will be exploited if the defensibility of your patent ever goes to court.

Get in early, choose the best kind of patent for your needs, do your research, keep the patent updated and don’t skimp on time or money. A good patent is worth it.

This post does not constitute legal advice and consulting a lawyer is recommended.