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The Role of IP in Deep Tech Startups: Behind the Scenes with a VC | Deep Tech Catalyst

A chat with Peter Olcott, Deeptech Principal @ First Spark Ventures

Welcome to Deep Tech Catalyst, the channel where science converges with venture capital, featuring global Deep Tech investors and experts.

Today, we are delighted to have Peter Olcott, Deeptech Principal at First Spark Ventures, a venture capital firm based in Menlo Park, focusing on early-stage Deep Tech startups.

In this episode, our spotlight is on the realm of Intellectual Property (IP), with a particular emphasis on its significance from the perspective of Venture Capitalists as a critical asset for Deep Tech startups. We will delve into the question: What grabs the attention of Venture Capitalists when it comes to evaluating IP?

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🤖 Deep Tech vs Tech: Not Only an IP Matter

In Tech, startups aim to develop and launch products quickly, often within a short time frame. However, in Deep Tech, it may take several years, sometimes up to a decade or more, before a product becomes commercially available.

This significant difference in timeframes shapes the entire approach to building and investing in these startups.

Additionally, Deep Tech companies rely on components to create their products.

These components can be likened to building blocks or Lego pieces. The key differentiator is that in Tech, these components are often readily available as open-source software or easily purchasable, and the people with the necessary skills are abundant.

In contrast, Deep Tech companies deal with proprietary, cutting-edge components that are not readily accessible. As a result, the development process is more complex and requires a deeper level of expertise.

Tech companies excel in exploring new markets with undefined requirements, leveraging their agility and adaptability. Deep Tech, on the other hand, operates in established industries and markets, often with stringent regulations and well-defined needs. Success in Deep Tech involves solving complex problems and meeting specific demands.

In summary, Deep Tech startups require more time, specialized expertise, and proprietary components to bring their innovations to market, making them distinct from traditional Tech startups.

💡 The Role of IP in Deep Tech Ventures from a VC Perspective

In the startup world, ideas rarely develop in isolation. It's unusual for a scientist or entrepreneur to work in complete isolation, often, there are other companies, including potential competitors, venture-backed startups, and established players working on similar innovations. Investors assess companies based on their standing relative to their competition.

IP is a critical component in how investors assess and rank startups, particularly in the Deep Tech sector.

In detail, Investors consider two primary aspects when assessing startups:

  1. The strength of their IP: a robust IP portfolio provides a competitive advantage by protecting a startup's innovations and preventing others from replicating their work.

  2. The strength of their team: equally important is the team's expertise and the quality of their scientific publications, which reflect their capabilities.

It's worth noting that not every startup excels in both aspects.

Some may have a strong team but lack a well-developed IP strategy, while others may have formidable IP but require additional support in building their team's expertise. Investors aim to strike a balance between these factors when making investment decisions.

In summary, IP is a critical consideration for investors, alongside the strength of the team and the startup's scientific publications. Deep Tech investors seek to invest in startups with a competitive edge in all these aspects.

📈 Why Is Freedom to Operate (FTO) So Important for a VC?

Freedom to operate is a crucial concept that often puzzles scientists and entrepreneurs. It is distinct from IP but equally important, especially as a startup seeks to expand its operations and enter new markets.


To understand this better, let's break it down:

  1. Intellectual Property (IP): IP encompasses a broad range of elements, including patents, copyrights, trademarks, and more. It is essentially anything that can be documented on paper and described. IP serves as a means of protecting a startup's innovations and creations. It can include patents that cover inventions, trademarks for branding, or even copyrights for written materials. The goal of IP is to secure ownership and exclusive rights to these intellectual assets.

  2. Freedom to Operate (FTO): FTO is a different concept. It focuses on the startup's ability to conduct its business without infringing on the intellectual property rights of others. In essence, it ensures that a startup can bring its products or services to market without running into legal issues or patent disputes with other companies or individuals.

Why does it matter?

  • Avoiding Legal Issues: FTO ensures that a startup's operations do not violate existing patents or intellectual property rights held by competitors or other entities. By securing FTO, a startup can minimize the risk of costly and time-consuming legal disputes.

  • Market Expansion: Having the freedom to operate is essential for a startup's growth and expansion. It allows the company to confidently enter new markets, introduce innovative products, and scale its operations without concerns about patent infringements.

  • Investor Confidence: Investors often assess a startup's FTO as part of their due diligence process. Knowing that a startup has the freedom to operate instills confidence in investors, as it reduces the risk of future legal challenges that could negatively impact the company's value.

🤼 IP Strategy 101

Patents can be categorized into two essential aspects: offense and defense.

Founders should embrace the idea that they are akin to leaders navigating a competitive landscape. Patent disputes are more than mere challenges: they are intense competitions, like wars.

Founders should think long-term, anticipating potential legal hurdles. "Freedom to operate" means a startup can develop its invention without infringing on existing patents.

Freedom to operate hinges on the premise that you could face legal challenges from competitors, who may possess superior resources and an extensive patent portfolio. They may target your business, aiming to gain an edge in the market.

Even if you have the freedom to operate on paper, it's important to be aware that you may still encounter legal disputes, which can result in substantial expenses. Therefore, founders need to factor this possibility into their financial and resource planning.

Key Elements of a Patent

Patents consist of two critical elements: a lengthy description and claims, the legal crux of a patent.

Freedom to operate involves scrutinizing the claims of patents within your field to determine if your innovations or plans might infringe upon them, potentially leading to lawsuits and expensive jury trials.

Great inventions often culminate in patent disputes, with various parties vying for control. Thus, founders need to anticipate these scenarios.

Often, one common challenge is treating IP strategy as an afterthought, often pushed aside for years. Yet, patent wars require early preparation.

Priority Date

The priority date, signifying when you invented something, holds immense significance in patent strategy. The sooner you patent an idea, the earlier you set a prior art bar, shielding against others' attempts to patent the same invention.

Therefore, initiating your IP strategy early and mapping out your approach becomes imperative.

Moreover, many founders mistakenly view patents as something they can simply write themselves, often devoid of a comprehensive strategy. Patents can be costly and require the expertise of seasoned lawyers.

Opting for subpar legal counsel can result in errors that render patents worthless.

Even a single word misused in a claim can invalidate a patent.

And if a patent has an error?

If you discover errors in your patents, there's a chance to rectify them by filing new claims while maintaining the original priority date. This process, known as 'submarining the patent,' permits you to update claims based on competitors' actions. Although it's not as straightforward as before, you can indeed correct and enhance your patents.

To Recap

In summary, while IP focuses on protecting a startup's innovations, freedom to operate ensures that the startup can operate without infringing on others' intellectual property rights. Both are crucial aspects of a successful business strategy, especially in the competitive landscape of deep tech startups.

One key piece of advice I offer to all Founders is to delve into IP law, both locally and internationally. It's not something you can merely outsource; it must become an integral, internally reflective part of your startup.

🧠 Actionable Insights for Founders on IP Strategy

Founders should consider the following key points when formulating their IP strategy:

  1. Start Early: IP should not be an afterthought. Begin thinking about your IP strategy from the very beginning of your startup journey. The earlier you address IP considerations, the better you can protect your innovations.

  2. Learn IP Law Basics: Founders should take the time to familiarize themselves with intellectual property laws, both in their local country and internationally. While it can be complex, having a basic understanding of IP law empowers founders to make informed decisions.

  3. Engage Legal Experts: When it comes to drafting and filing patents, trademarks, or copyrights, it's crucial to seek the expertise of experienced IP attorneys. These professionals can help you navigate the legal complexities and ensure your IP is adequately protected.

  4. Prioritize Strong Patents: Not all patents are created equal. Invest in obtaining strong patents with well-written claims that provide robust protection for your innovations. Low-quality patents may be invalidated easily, rendering them ineffective.

  5. Monitor Competitors: Keep a watchful eye on your competitors' IP activities. Understanding their patent portfolio can help you avoid potential legal conflicts and inform your IP strategy.

  6. Build a Robust Network: Surround yourself with a team of experts who understand the technical and legal aspects of your industry. A strong team can help you develop and execute a comprehensive IP strategy.

  7. Balance Offense and Defense: Consider both offensive and defensive aspects of IP. While protecting your innovations is essential, you should also be prepared to defend your IP if necessary.

  8. Don't Underestimate the Value of IP: Intellectual property can significantly enhance your startup's value. Investors often place a high premium on startups with strong IP portfolios, so maximize this asset.

  9. Be Prepared for Challenges: Understand that as your startup grows, you may encounter patent battles or disputes. Be financially and strategically prepared to navigate these challenges.

  10. Adapt and Evolve: As your startup evolves, review and update your IP strategy accordingly. Innovations, market dynamics, and competitors may require adjustments to your approach.

This is all for today!

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Please be aware: this is not investment advice! The information provided in this publication is for educational purposes only and should not be construed as financial advice or a solicitation to buy or sell any assets or to make any financial decisions. Furthermore, we want to emphasize that the views and perspectives expressed by guests on The Scenarionist do not necessarily reflect the opinions or positions of our platform. Each guest contributes their unique viewpoint, and these opinions are solely their own. We remain committed to providing an inclusive and diverse environment for discussion, encouraging a variety of opinions and ideas.