When I consult with new entrepreneurs, they typically ask me advice on how they can protect their intellectual property (IP). For some companies their IP is their bread and butter, and it’s critical that they protect it. For others, they are offering a commodity, and it makes better sense to spent their time and resources on marketing and distribution rather than legal filings and attorney fees. In The New York Times Magazine’s 9th Annual Year in Ideas issue, they shared some great ideas that have come out over the year. But the most enjoyable part of this year’s issue was the illustrated list of select patents. Some of my favorites include: disposable diaper with camouflage pattern, prayer-reminder device, Senate card game, and of course the bacon comb. While these ideas may see limited success in the market place, in no way are they complex enough or unique enough to merit being patented.

To file a patent, you typically need an attorney and it will cost you $5,000 to $15,000 depending on the complexity of the product. Just because you have a patent for a particular item doesn’t mean a major corporation can’t knock you off with just a slight modification to the patent. Or knock you off completely and only have to pay you a tiny royalty on their sales. Now there are many cases of unique technologies that merit being patented.

For example, my friend Steve Christini engineered a very innovative All Wheel Drive (AWD) technology for mountain bikes and motorcycles and created a successful business, Christini Technologies, from this invention. A good, lightweight AWD solution for bikes had been the holy grail in the cycling world for many years, and Steve was able to solve this problem. In his case, the patent has been key for his business, because modifications to the technology just won’t work, so the big manufacturers can’t knock him off. Plus the price point on the bikes is huge and you can work the cost of the patent into your profit margins. But if you’re creating a low-cost, easy-to-modify product such as an illustrated pattern on diaper or a board game (unless of course it’s the next Monopoly – which the Senate Card Game and most other board games ain’t going to be), the patent isn’t really worth it.

When we started SmartsCo we wanted to patent our game concept, but our IP attorney talked us out of it because it would be simple enough to modify the concept (which many people have since done). Our strategy was to focus on our first-to-market advantage and focus on implementing effective marketing and distribution strategies. While we didn’t patent our game concept, we did spend money on getting a strong trademark strategy and that we had the copyrights for all the text and artwork in our games (including making sure that our contractors assigned their rights to us when they worked on our projects). We saved a lot of money in filing a trademark around the “Smarts” logo treatment, and any word we put in front of it was protected by the mark. Protecting our IP helped increase the valuation of the company because we owned all of it and could use our illustrations and text in many formats that we could license (such as iPhone apps, calendars, etc.).

So, if you’re looking to protect your IP, unless you have a very unique technology, you’ll most likely want to focus on protecting your copyrights and trademarks. It is always good to have a good IP lawyer at your disposal, but make sure you hire one with ethics who won’t talk you into spending money on patent and trademark filings that aren’t going to strengthen the value of the business. You should always be sure to protect your trademark, which is pretty straightforward at the U.S. Patent and Trademark Office website, but you might want to have your attorney take care of this filing, especially if you have a similar name to another product or business. Copyrights, on the otherhand, are very straightforward, and you certainly don’t need an attorney to help with them. Simply visit the U.S. Copyright Office website and you can file electronically for just $35.

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