INTRODUCTION

India is the third largest startup ecosystem in the world. It has 3,51,953 self-declared startups, of which 1,52,596 are DPIIT registered (Stats from Startup India: As of 31/1/25)[i]. A significant number of these startups are technology centric and have filed one or more patent applications to protect their innovations. However, a lot of such patent applications end up being paper tigers with no teeth a.k.a. are unenforceable. The reasons for such weak patents are varied but to name a few: the inventions were not properly screened for prior art, the patent is not aligned with the product, the claims are too narrow, and so on. We therefore thought it wise to devise a strategy for young startups to follow for patent success. So, here it is:

1. FROM IDEAS TO DISCLOSURES: GETTING STARTED

Like all inventions, it all begins with a seed of an idea, that may be lurking in the startup founder’s head for some time, or has taken birth in an ideation session or problem-solving discussion in the startup team. It is critical to record and document these ideas in an Invention Disclosure Document. And once these disclosures are recorded, it has to be ensured that they are not disclosed to any external party without a non-disclosure agreement.

2. SCREEN THOSE BAD APPLES: IDENTIFYING PATENTABLE INVENTIONS

Once all the ideas have been collected, it’s time to screen the bad apples, i.e., ideas that cannot be patented for any number of reasons, such as availability of prior-art, statutory restrictions, etc. The screening can be performed by a short patentability search. Once the bad apples are screened, the good ones go on to become patent applications. But wait, these are to be filed as provisional applications, and not complete applications just yet. There is one more crucial step to be performed.

3. SHOW NOT TELL: VALUE OF A PROTOTYPE OR MVP IN PATENT APPLICATIONS

It’s always better to show not tell in case of valuable technologies. I.e., whatever we may write in the patent application, if it is not practically done in the form of a prototype or a minimally viable product, it has very little value. Once a provisional application is filed, the Patents Act, provides a one-year window to file the complete application. This one-year window is good time to create this MVP (Minimum Viable Product) or prototype and solve all the practical problems that may arise out of this process. The final MVP or Prototype will give you clarity on what is possible and what is not possible, and allow you to better craft your complete applications and their claims for a stronger and targeted protection.

4. TAKE THOSE INCENTIVES AND SCHEMES: COST SAVING MEASURES

For cash starved startups, it is always better to look for schemes started by the government before dipping into their own cash pile. As an incentive, the government has already significantly reduced the patent process fees by 80% for startups. Additionally, the government has also allowed startups to file for expedited examination of patent applications, as a second incentive. Additionally, the government has introduced a scheme, called Scheme for Facilitating Start-Ups Intellectual Property Protection, or SIPP in short. Under the SIPP Scheme a group of patent agents are registered as facilitators, whose service charges for filing patent applications for startups, are paid by the government and the startup only has to pay the government fees. This SIPP scheme is very useful for early-stage startups, to dip their beaks into the patenting process. The SIPP scheme is also available for design registrations and trademarks. And the scheme also allows a few WIPO Technology and Innovation Support Centres (TISC’s) to function as facilitators for startups. There are several other schemes that help startups in securing their Intellectual Property assets.

5. THERE IS STRENGTH IN NUMBERS: PORTFOLIO DEVELOPMENT

So, as they say, ‘You can break a stick, but you can’t break a bunch’; it is always better to have a bunch of patent applications/patents around a product or process defining and claiming various innovative features of your startups core products or processes. In case of an expensive infringement suit, your opponent can easily employ a bunch of lawyers to find prior art and try to invalidate your 1 or 2 or 3 patents. However, as your portfolio size increases, invalidating 8, 10, 12 patents becomes increasingly cost prohibitive for the opponent. Also, the likelihood of infringement by the infringing opponent increases if you have closely related patents that describe and claim each and every possible feature, variation, or alternative of the product. In fact, having a big enough patent portfolio can signal a potential infringer to not risk venturing into your patented technology.

6. ART OF PATENT WAR: STRATEGIC PORTFOLIO MANAGEMENT

There is ‘Art Of War’ by Sun Zhu and then there is ‘Art of Patent War’, a.k.a., Strategic Portfolio Management. Once a Startup becomes large enough that it establishes itself as a strong technology player in the market, and secures a large enough patent portfolio, the ‘Art of Patent War’, or Strategic Portfolio Management comes into play. Here, patents are like chess pieces, designed to deter competitors in some technology spaces, encourage cooperation in other spaces, and let open some technology spaces, develop de jure and de facto technical standards and so on. There is a large volume of literature available on strategic management of patent portfolios to secure competitive edge in the market. Some of them are discussed below:

SMOKE SCREENS: In this strategy a company files a high volume of patent applications, for different variations, features, sub-features, alternatives, invent arounds of your core technology to create patent clusters or patent thickets in a narrow technology space. This prevents the competitors to understand which patents are critical to your product, and which are not. Also, this strategy makes it very hard for the competitors to invent around your thicketed narrow technology space.

BARTERING CHIPS: In many cases, especially, in high tech sectors companies are working in overlapping technology spaces, and the probability of infringement of each other’s patents is near absolute, so companies come together and use their patents as bartering chips to negotiate cross-licensing agreements, or develop technical standards and pay royalties to each other on Fair, reasonable, and non-discriminatory (FRAND) terms.

OPEN DISCLOSURES: In some cases, companies choose to open the technology for broader use in the market, and prevent others from patenting it. This can be for any strategic or egalitarian reasons. One of the most common reasons is that the openly disclosed technology is not core to the business but can pose a threat if someone else is able to patent it. So, businesses, by open disclosures, deliberately create prior art to prevent others from patenting the disclosed technology. This can be done in several ways, by publishing research papers, or using special websites, such as, Research Disclosures[ii], or most commonly, by strategically abandoning patent applications post publication.

7. YOU MUST PRUNE TO BLOOM: CONTROLLING COSTS

As it is important to prune the plants in your garden to remove dead and decaying branches, it is important to abandon patents on old and obsolete technology and products that are no longer being manufactured or sold by your startup. This keeps your portfolio healthy and prevents your startups from recurring patent maintenance costs on such old and obsolete technologies which you are not using in the market. However, before abandonment, the patents must be evaluated from strategic value point of view, i.e., you may not be using the obsolete technology, but a market competitor is using it or something close to it for competing against your company. In that case, the patent can be maintained as a bartering chip or as a deterrent for your competitor.

8. CONCLUSION

Startups, especially Tech Startups, in India must learn the various tactics and strategies used in strategic patent portfolio development & management for achieving long term success in the domestic market and, especially in international markets, such as US and Europe, where market competitors are a lot more evolved in the patent game.