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?

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.

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The patent process can be fairly expensive (depending on the product and your claims). I went through it over the course of several years (yes, you read that correctly) and it took MUCH longer than anyone projected and cost MUCH more as well. So depending upon your financial situation it might be cost prohibitive to proceed until you secure sufficient capital. Since the implementation of the FITF (aka FIF) system the rules and recommendations that stood for years have shifted. So the general recommendations you may think are good ideas may no longer apply. Know that if you DO decide to file a provisional patent you have 12 months from the date of filing to file a non-provisional patent. And if you make any changes (aka "new matter") you may have to file another provisional patent because you cannot add any new matter to the non-provisional patent. The provisional patent can be a useful tool - but depending upon the product and the strategy you are planning to execute during development and market testing - it may or may not provide the protection you desire. I would highly recommend that you consult with a patent attorney to get an idea about what's involved (i.e. costs, processes, time-frames). At the very least hire a skilled professional to do a patent search FOR you - not only to ensure that it in fact is unique but also to ensure it is "patentable". You may already know this but it's worth repeating: (1) Your fear of your idea of being "stolen" is one that almost every entrepreneur with a "big idea" holds and (2) It's far less likely to happen than you might think. I wish you the best of luck!

Any suit run by a competent lawyer will ensure that the parties named in the suit include everyone who might be able to pay. So, while your LLC might own some products, it may not be the only entity sued. You might be sued, along with all kinds of other people and companies. I'm not saying there's nothing you can do, but you certainly cannot escape having to defend a suit. Anyone can sue anyone else, even if the suit will ultimately be unsuccessful. You ask how can you handle being sued without going to court? The answer is negotiate a settlement that results in the lawsuit being dropped. So, what have you got to trade? What damage could you do if they continue to sue you, and so on.

It's becoming more and more difficult for patent trolls to litigate with the current discussions in Congress. It really depends of your market. If it's involving software patents, it's even harder. At Nesting Partners my firm actually bring patents to life then to product then to market to exit! We know quite a lot about patents and work with a lot of trolls (or NPEs) to help them find an alternative to litigation.