Early-stage patents and patent applications are not just legal shields, they are relevant assets that can increase a startup’s attractiveness in fundraising. A joint EPO/EUIPO study [1] finds that European startups that filed patent applications before an early growth round where more than 6 times as likely to secure funding. This investor perspective is also reflected in the EPO’s recently published case studies [2] that explain why patents matter in financing decisions and how investors assess IP in practice.
For many startups the key strategic question is not “patent or no patent”, but how to manage two recurring trade-offs: timing and scope. As a result, staged filings and layered claim structures often deliver the most robust and commercially meaningful outcomes.
Trade-off 1: File early vs. File late
- Pro early filing (fundraising + priority): An early priority date reduces disclosure risks and enables open communication without jeopardizing novelty. It also gives investors something concrete for due diligence – consistent with evidence that early patent applications support stronger early-stage financing.
- Pro late filing (technical maturity): Waiting allows real-world implementation constraints, failure modes and engineering fixes to be incorporated within the application This creates valuable fallback positions and can mean the difference between a concept patent and one that withstands prior-art attacks.
Best Practice: Follow a staged approach. File an initial application when the technical concept is stable. Then use the 12-month priority window to add variants and narrower fallbacks in a follow-up application that reflects the practical issues encountered during implementation. Avoid mixing later-added variants and fallback positions with what was disclosed in the priority application, as this can create significant added-matter and priority-loss risks. Try to disclose any additional material in clearly separated paragraphs, for example at the end of the document, so that it remains clearly distinguishable from the original priority disclosure.
Trade-off 2: Broad claims vs. Narrow Claims
- Pro broad claims (pivot resilience): Startups frequently iterate and may pivot to a different product built on the same core technology. Some startups even commercialize the technology itself via licensing. Broader independent claims (i.e., with greater scope) can protect relevant paths and reduce out of scope scenarios of roadmap changes.
- Pro narrow claims (product correlation): Narrow, product-aligned claims tend to simplify infringement actions, especially by being more robust in opposition or invalidity proceedings.
Best Practice: Use a layered claim set with one or more broad independent claims for the core technology and dependent claims that incrementally align with the product implementation. Support them with multiple embodiments and technical effects for strong fallback positions.
Startups repeatedly run into a set of patent-specific pitfalls.
Pitfall 1: Novelty-destroying disclosure
A startup may unintentionally disclose technical details before filing, for example by circulating a pitch deck, or by pushing GitHub repositories. Once such information is publicly available, later filings may lack novelty. A practical mitigation is to introduce a pre-release IP review step before publishing any information about products.
Pitfall 2: Ownership and inventorship not transferred
Startups frequently discover too late that key inventors, such as early freelancers or university-affiliated contributors, never transferred their rights to the company. This can create uncertainty about enforceability and may delay financing. The best mitigation is to consider in advance if a third party cooperation partner may assign rights in potential inventions freely and, if so, secure the assignments of rights from the start. It should be kept in mind, though, that inventors that are employees are generally obliged to report service inventions to their employer and that, typically, the employer is entitled to claim these inventions. This can pertain to inventions made by an employee in a co-operation with a start-up. This aspect may, e.g., become an issue in a co-operation with a university professor.
Pitfall 3: Mismatch between claim scope and business reality
A common error is that the granted or pursued claims protect a minor technical detail rather than the core technical feature that drives the product’s market advantage, so competitors can deliver a similar commercial result without falling within the claim wording. A practical way to avoid this is to map claims directly to possible real-world infringement scenarios.
Pitfall 4: A thin first filing that cannot carry broad scope
In early filings, startups sometimes describe the invention only in general terms and seek broad claims that are not sufficiently supported by the original application. This typically becomes apparent when prior art is cited and the application does not contain technical details or technical effects that allow claim amendments. To avoid this, the first filing should be prepared in close collaboration with the engineers and inventors and should include at least one detailed implementation.
[1] https://www.euipo.europa.eu/en/publications/2023-startup-finance