Colleen Chien Patent Research: Startups Paying the Price

Patent lawsuits create big problems for small companies and startups which pay a larger share of their revenue and resources fighting them than larger companies, according to research published by Santa Clara University Professor Colleen Chien.

In July, Chien testified before the House Judiciary Subcommittee on Intellectual Property about the need to change a patent system that harms entrepreneurs and innovators more than it helps. Afterward, Engine sent out a call for startups who had been affected by patent litigation to share your stories with Chien to assist with a study into the impacts of patent litigation on startups. Chien listened to your stories, tabulated the survey results, and used them concurrently with her comprehensive analysis of patent litigations from 2005 to present. The findings:

  • Small companies are more likely to experience “significant operational impact” due to patent demands.
  • Monetization of software patents is an iffy investment. Few software patents are actually valuable, and the patent market is a risky lottery type situation rather than something investors or companies can rely on. 
  • Most startups don’t patent anyway because of the expense.
  • Startups are often targeted because they are users of technology -- like retail or hospitality outlets that have WiFi.

Startups and small companies are among the most negatively impacted by patent litigation. The need to protect America’s startups, and to create an environment that isn’t chilling to new firm establishments, is vital to our continued economic growth and job recovery.

Chien notes that existing proposals, like the SHIELD Act, may work differently for startups than they do for larger and more established companies, who are more constrained by time and resources and thus cannot bear even the lessened drain on resources that these reforms provide. The SHIELD Act functions on a “loser pays” system in which the costs of invalid suits or non-infringed cases are paid by the bringer of the case. However, in the case of a small startup, the resources and time drained in order to prove that the suit is invalid or prove non-infringement may still be too high.

Policymakers need to be aware of the high costs patent litigation imposes on startups under the current system and under proposed reforms. The entrepreneur community should guide policies that lessen potential negative effects on startups and young businesses. Startups are the key to economic growth and global competitiveness in this country, and government regulation needs to reflect this.