Should tech start ups with a sole owner/founder/inventor (patent pending) filing an LLC License or Assign patent rights into the newly formed LLC?

I help clients leverage and monetize their patents in a variety of ways. One of the best methods is to attend and exhibit at trade shows in your field. Targeting startups may be one approach, but that's not the only market for your patent. I'd be happy to talk with you about identifying the best trade show and working the direct solicitation angle as well. Let me know when you're ready to get started!

The answer: do both. The first thing you need to know about patents is that the U.S. now has a first-inventor-to-file system after the American Invents Act (AIA) went into effect in 2013. I have to disagree with Dan above: for hardware inventions especially, a patent is an important part of the business plan. The first inventor who "races to the patent office" now is typically the winner. This means if you do not file for a patent on your invention, you can lose the rights to your invention much easier than before the AIA. The next step is to think about how a patent fits into your business plan. A patent application is but a tool in your bag when starting up. A crowdsourcing campaign on a site like Indiegogo can validate the idea. But it also puts the idea out to the public and starts the 1-year clock ticking on when you can get a patent. For hardware startups, however, if you're not thinking about a patent upfront -- you're likely leaving a massive amount of your product's value on the table.

I am a corporate attorney and have advised clients of protection of the intellectual property integral to their operations. In the intellectual property world, there are three types of federal registration you can pursue - patent, trademark, and copyright. Patents secure ideas, trademarks secure brands, and copyrights secure written product. If you are looking to protect your idea, you may think about filing for a patent. The first step is securing a provisional patent that sort of holds a spot for your idea while your actual patent application is pending or your idea goes into development. The patent process is complicated and lengthy, so I would recommend getting the advice of a patent attorney if that is something you want to explore. Not all ideas are able to be patented, and you may find that a patent is not an option for you. The other option is to maintain your idea as a trade secret. This essentially means that you are careful about who you share it with, and when you do share it with anyone, you have an Non-Disclosure Agreement in place that prohibits them from disclosing your idea to anyone else or misappropriating it for themselves. If you had a company built around the idea, you would establish an in-depth trade secret program designed to prevent disclosure of your idea outside of the company. (e.g. Coca Cola has a trade secret program built around the recipe for Coke.) As an individual, you would just need to be careful and, to be extra thorough, get people with whom you share your idea to sign NDAs. There is no federal registration process involved in maintaining a trade secret, just common sense and consistency with your protective practices.

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The answer is yes, but it always depends. Let me begin by saying that the more knowhow, etc. involved, the easier it is to sell something without any patent protection. Otherwise, you are trying to sell something without protection and you get no protection until the patent issues, which may take years. The acquirer may just run with it (I would) without licensing knowing there is no cost until your patent issues. Then, when you file, they will see your claims and try to modify their product around your claims. It is slightly vicious in nature. That said, I may not act much different if you file first, unless I can buy your patent or the license costs are very inexpensive. Secondly, many countries have absolute novelty and you will not be able to protect your invention there ever, even if a licensee arises and wants to enter those markets. This too, is a serious limitation for licensing. My conclusion would be that you are underfunded to address your IP and that I can get away with murder. Filing the application is your way of telling people that you are serious. That said, it is not necessary and I have a lot of clients that file later or never file.