Patent law is currently a sea of chaos. Tech startups simply cannot count on their patents as an effective and efficient tool to shut down the Microsofts of the world. And that’s after you actually have a patent. Current statistics show that the average patent application takes longer than 30 months from the date of filing to the date of issue by which time your competition could run you over.

In most cases, entrepreneurs need to avoid the knee-jerk reaction of “Patent Everything!” and should instead follow a carefully planned, comprehensive intellectual property strategy to achieve defensibility.

Here are a few tips about how to do this:

Put patents in the right place. Patents are important. You just need to keep them in proper perspective. Practically speaking, this means asking “Should we patent?” at the end of the invention management. Then consider these issues:

• How are your competitors using patents? In some industries like biotech, pharma, and medical devices, you can’t get past Go without them.
• Is your invention better protected as a trade secret? Trade secrets are any formula, pattern, machine, or process of manufacturing used in one’s business which may give the user an opportunity to obtain an advantage over its competitors who do not know it.
• Not all information can be kept as a trade secret. You need to be able to maintain the secrecy in-house—limiting access to the information—and your competitors can’t be in a position to reverse engineer your product/service and figure out how you did it.
• Could making the invention publicly and freely available create greater value for the company? Making source code and API publicly available might get you that all-important community support that can lead to life-sustaining critical mass and momentum.
• Can placing the invention in the public domain by making a “defensive publication” work for you? A defensive publication is essentially donating it to the public domain of select inventions (inventions you don’t want to protect with patents or keep as trade secrets), and information with the goal of preventing a later competitor from obtaining patent coverage on the exact same invention. Large corporations like IBM have used this tactic.

Look beyond the value in a legal action. When considering the role of patents in your overall strategy, remember that they can add value beyond just the ability to sue a competitor. For instance:

• Furnishing a key selling point: “patented technology.” (Whether it is justified is another issue, but it does have some value).
• Blocking your competitors from getting patents which in turn keeps them from suing you.
• Providing counter-offensive weapons: if you get sued at least you can counter-sue. The threat of a countersuit can prevent a suit or force settlement out of court.
• Bluffing and strong-arming smaller competitors. They should know that paying you a nuisance value settlement to license the patent is cheaper than battling you in court.
• Developing a portfolio of assets that may have value for future acquirers of your company who can afford to sue.

Consider the role that inventions will play in your business. Notice that we say “inventions” and not patents. Never forget that patents come second in this game. Are inventions an important component of the value and growth of your company and business?

• If inventions are important in any way, develop an efficient system for identifying and managing them. You should have well-designed invention disclosure forms, clearly designed processing systems, meetings for reviewing disclosures, and a cataloging meeting with your internal decision-makers at least once each year.
• Get trademarks that are strong and protectable.
• Get the domain name. Be creative and find something that fits in with your branding strategy.

Develop an overall branding strategy for your trademarks, including your domain name. Many entrepreneurs simply wait too long to consider this important and incredibly valuable aspect of intellectual property.

Branding is as important as your technology is, and it sucks to have to rebrand everything twenty months into your corporate life just because you didn’t spend the time and money to get a legal opinion on the availability of a name.