When talking with a new client or a potential client about their IP position, needs and strategy, I always start by asking the same question: “which feature of your product do you fear competitors copying.”  This question leads to a discussion about what really sets the particular company/product apart from all the current and future competitors.  However, the initial answer I receive to this question is, all too often, “I never thought about it that way.”

I think this answer is common because founding and building a company is hard.  The team members focus is placed on what the company itself is doing or wants to be doing.  Therefore, there is less emphasis placed on worrying about the competition.  In many cases, entrepreneurs think they already know what makes their company/product unique or sets them apart.  However that vision is frequently clouded by being in the nitty-gritty details of product development, both for the business people and the technical co-founders.

I recently met with a great young Philadelphia-area company, whose engineers described their technology in painstaking detail.  After two hours of meetings we came to the realization that what truly set them apart from their competitors was not their unique algorithms used in their back end, but the overall flexibility provided by their system to their customers, versus the rigidity of their competitors.  The discussion quickly turned to what allowed them to provide this flexibility and how it could be protected.

Frequently, a high level concept is entirely ignored by the founders as being “just the way we do things,” whereas in reality that concept may be what makes the company unique and worthy of IP protection.  That is not to say that there is never IP in the details.  In fact, there probably is, but taking a high level view at your company versus the competition can be illuminating.

Having a discussion with counsel that understands both technology and intellectual property allows for a deeper understanding of what makes your company unique.  It can also lead to the realization that the company does have valuable intellectual property, whether that is patent, trademark, copyright or trade secret, that is worthy of protection.  So for those of you working on your startup, I encourage you to ask yourself the question and see if the answer might surprise you.