What Venture Capitalists Look for in Patent Applications

08-what-venture-capitalists-look-for-in-patent-applicationsMy LinkedIn profile doesn’t say -- but perhaps it should -- that I evaluate the patent portfolios of startups (which virtually always comprise a provisional patent application) and tell HipLogiq’s investors and managers whether I think it makes sense to invest in or buy those startups based on the value of those portfolios.

I figure that it is smart for startups to file at least one patent application to protect their ideas from thieves and to make a formal claim that can be monetized. HipLogiq, for example, has twelve of them, putting aside the three patent applications that have been approved and issued.

A problem arises, however, when a poor patent application is intelligently filed, and most startup’s patent applications I’ve read are poor because startup management is unsophisticated about patents and don’t insist that patent drafters do good work for them and/or because startup management is eager to spend as little money as possible [which leads them to hire patent drafters who cut corners (people who figure that making errors is okay because those errors probably won’t surface for at least ten years, when they’ll be long gone) and/or patent drafters who know so much they don’t know where to begin].

Patents are ultimately of value because a businessperson says so, or because a judge says so, or because jurors say so. The most valuable patents are written to convince businesspeople, judges, and jurors that the patented technology is good and valuable; they are not written primarily for the edification of scientists, technologists, experts, coders, geeks, and the like.

Here are four questions that any potential juror, judge, or businessperson (that is, virtually anyone) should be able to answer after reading a startup’s patent application:

  1. What is the invention? Quite often there is not enough information in the title to answer this, and the application’s abstract, background, and summary of the invention don’t directly answer this question. It shouldn’t be this hard to figure out!
  2. Why is the invention novel? Why, in other words, is there valid subject matter here? This question will be raised several times during patent prosecution and enforcement; you need to have a practiced – and compelling – answer.
  3. Who is a likely infringer? If there is no likely infringer, any patent that issues will likely have no value.
  4. Why would it be impossible – or very costly – for an infringer to avoid the patent? If an infringer will spend less avoiding your patent than paying you for a license, that is what will probably happen, and your patent is worthless.

If you read a patent application and you can’t readily answer those four questions, the patent drafter did a poor job.

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