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Patent Matters
Patents fuel major business and legal decisions, but navigating them requires special skills and focus. The Patent Matters podcast discusses best practices in the searching, prosecution, and management of this form of IP.
Patent Matters
Episode 5 - From Idea to Invention - An Exploration in IP
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What happens between having an idea… and filing a patent?
In Episode 5 of Patent Matters, we explore the often-overlooked — and highly critical — “murky space” where innovation becomes intellectual property.
Our guest, Gyde Balzer Carstensen, European Patent Attorney and founder of PATENTsmarter™, brings deep experience working with biotech and life science startups, as well as evaluating early-stage portfolios for investment and acquisition. Her perspective is clear: too many innovations fail not because of weak technology, but because they are not commercially thought through.
This episode dives into how business strategy must drive patent strategy — not the other way around.
We cover:
- How to assess novelty, patentability, and real competitive space
- Why patent databases are powerful tools for both protection and inspiration
- The importance of Freedom to Operate (FTO) — and identifying “show blockers” early
- Why 90% of technical disclosures exist only in patent literature
- When to patent vs. rely on trade secrets
- How startups can use IP intelligence to pivot early and avoid costly mistakes
Gyde also shares practical frameworks and hard-earned lessons, including:
- The “Stop–Think–Options–Protect–Go–Repeat” approach to innovation
- Why founders should pitch what their idea does — not how it works
- The risks of using AI tools with confidential invention details
- Common pitfalls in budgeting, team collaboration, and internal communication
This episode is a must-listen for founders, innovators, and anyone working at the intersection of technology, business, and IP.
Because in IP, the most important decisions are often made before anything is filed.
Interested in learning more or getting in touch with Gyde? visit her website
Hosts: Mie Rasmussen and Jonathan Skovholt
Patents aren't just legal documents. They represent million-dollar decisions. The Patent Matters podcast takes you behind the curtain and shares best practices. Hosted by the experts at Ensemble IP, we're having real conversations with innovators, patent attorneys, agents, and IP leaders who know the stakes and know how to win.
SPEAKER_03Welcome back to Patent Matters, the podcast where we explore the power of patents, innovation strategy, and how intellectual property can make or break your big ideas. I'm your host, Mir Rasmusling, VP of Custom Engagement and Ensemble IP, and my co-host, Jonathan Skoholt, head of search at Ensemble IP. And today's episode we dive into critical but often misunderstood phase of innovation, that murky space between idea and invention when you're still shaping your product and wondering is it too early to think about patents or am I already late? So joining us is someone who knows the space inside out. She's a European patent attorney and the founder of Patent Smarter and Idealify. Gude advises startups and growing businesses on building smart patent portfolios and IP strategies that support your business interests both from day one but also simplifying your workflows through birth frameworks and checkpoints. She's working with founders across industries and specializes in biotech and life sciences, where a misstep in your patent approach can cost you years or even millions of dollars, pounds, euros, your currency. So we're now unpacking when to start searching, how to use patent data, not just to protect, but also to shape your innovation and what it really means to own a patent and that value it has, not is it just paperwork or what is the value in it? Whether you're scribbling down your first idea on a napkin or you're refining a prototype, this conversation will help you avoid common pitfalls, use searches to your advantage, and think strategically about IP from the start. So let's get into it. Welcome to the episode, Lude. Thank you, Mia. Thanks for having me. Thank you, Jonathan, for joining us.
SPEAKER_02Well, thanks for having me as well.
SPEAKER_03We spoke a little bit about Patent Smarter and your baby essentially. Do you want to tell us a little bit about how you came up with the idea, what it's all about?
SPEAKER_04Yeah, sure. I have worked in patents for 16 years by now. I started my career in private practice. Then shortly after I joined Nogunordisk, where I worked for many years. And while I started there, while I grew or developed and I got my European patent attorney exam, I had to evaluate patent portfolios of startups or university spin-outs for mergers or acquisitions or collaborations and due diligence processes. I had to reduce the price we were willing to give because their patent portfolios were not like commercially stored through enough. So maybe they were filed too broad or too narrow or just without any strategies, so all over the place. And then when you're a big business, you want the commercial value to be there. And that was sometimes hard to get. So that's when kind of the seed of Patents Matter started. That I felt that there is a need. Despite using patent attorneys, you have to understand how your patent strategy connects with your business strategy, and that your business strategy always comes first. And I think that is something that you learn as an in-house attorney in a different way because you follow the project in a different way than if you are external all the time. We do different jobs and work really well together if you use our competences. So that's what started it, and then took a while before I took the leap. And now I have been educating about patents and other IP for almost five and a half, six years or so. And I still think that there is a lot of work to do.
SPEAKER_03I can imagine. And then from that, you start with patent smarter and then idealify as feeling we're yeah.
SPEAKER_04So well, patent smarter is like the business name. And I started off with just patents. That was my idea. And then I got a lot of questions about copyright, trademarks, and so on. And then patent smarter is still good because everyone thinks that every IP is a patent. So that's still a good name. But then I just somehow, when I started working with my frameworks and I saw that I have a very pragmatic and action-driven approach to everything. It's not like what does the law say, but more what does it mean to you and how do you need to act to get most out of the law, the protection or your situation. Then I started to think, okay, I have this approach that is everything I do in Patents Matter on this practicality or pragmatic approach that drives you towards action. And then I brainstormed and now I own the name Idealify. So my framework is called Idealify. Patents Martin Idealify trademarks. One is registered and the other is by use.
SPEAKER_03Very exciting to have you here. Thanks. There's a lot of different searches in patents, and they might not necessarily know what the different types of searches are. So we have an FTO, a landscape, validity. Can you give us a few insights on the different types of searches? Absolutely.
SPEAKER_04First and foremost, I'm not a searcher, but I certainly love my searches. Because you need to be a specialist in that craft to do good searches. I can do the quick and dirty, and I can find stuff sometimes creatively, but I certainly would never put my head on the block and say that I have found everything because I think other people are better than that. But of course, I have used the search results and I have analyzed and provided input to develop further only searches. Novelty searches are usually those that we use when we have an idea and we want to file a patent and we want to make sure that there is no prior art that destroys our novelty. But I would say it's just one part of a patentability search because in patentability searches you would then also add on like other prior is there other prior art that could be combined to take away inventiveness or make the invention obvious. Are only published in patents and often published for the first time much earlier than in papers and so on in patents. And so a patent landscaping can give you the hottest, newest technology approach of your competitors. The smaller you are, the less risk you want in terms of overstepping or infringing someone else's rights. So you want to check out if you can cover out a corner of your technology area that is not so busy that you can work in and develop a solution for, or you can get inspiration on how you could make a variation with some of the technology that is around your area. Yeah. And then freedom to operate is basically once you have your invention and you're developing your product, you want to make sure that there's no show blocker. You don't want any third-party owned patent to be alive and valid that it can be enforced against you. So you look for problems in that kind of search. When you find it, then you try to figure out how to deal with that issue before it becomes an issue, usually. Hopefully. Yeah. And there you can do another novelty search. If you find an issue, then you make a novelty search on that and try to figure out if there's a novelty destroying prior art, the next best would be an inventive step kind of argument. You would look into the databases to see if the priority is valid. And if you find something, then the issue is not that big. Then you can maybe invalidate the patent. And if there's nothing to be found, then you should probably go and negotiate for a license.
SPEAKER_03Yeah. Nice. Thank you. It's good to prove those. Sorry, Jonathan. Go ahead.
SPEAKER_02So when it comes to startups, you know, because you're dealing with these are new companies, they're often really energetic, like CEOs and individuals. What do you think is most often overlooked by them? And like what's the biggest concern for them, at least from an IP perspective?
SPEAKER_04That's such a big question.
SPEAKER_02It is a big question.
SPEAKER_04Yes. I think that from my experience, I guess there is, I don't know if it's a problem as such, but the thing I discuss the most is either you are not concerned enough with patents, you think it can wait, or you don't budget for it, or you don't take it serious enough, or you are in the other extreme that you think that you have an invention and you deserve a patent that is kind of covering the world and deserve recognition of everyone and should be king tomorrow. So there's everything in between. Aligning expectations around what kind of right to forbid a patent is and what your contribution has to be to get a patent in the light of the prior art, and then how much work goes into actually drafting a patent. It's not just something that you can outsource to your patent attorney, and then it's all nice and dandy because you have to make sure that your patent attorney understands where your business is at now and where it's moving towards, and what your goals are, which patents you maybe want to file in the future, so you don't create product art for yourself. So everyone knows a little bit about patents, but often not enough to actually make it like this really strategically strong business tool, it is, I think. And because they are so CEOs in startups, and also they're kind of if they are growing, maybe the employees are really skilled people, so they know a lot. And I think that it can be really difficult when you understand a little and think you understand enough about business that you also understand patents. It's hard to explain that it's not as hard as you think, but it's also much more difficult than you think.
SPEAKER_02Yeah, and kind of like a follow-up to it. So it makes sense that you sometimes run into those CEOs that overlook this, it's new to them. But do you ever have a CEO that's so over-energetic that they're doing too much? Like they're like, I want to do a landscape and I want to clear everything and I want to patent everything. Do you ever run into those?
SPEAKER_04That stops very fast when you tell them what it costs.
SPEAKER_02What it costs, yeah, I would imagine.
SPEAKER_04Yeah. If you are in a lucky situation where budget doesn't matter, which I don't know, it's probably an imaginary situation. But I have actually never had someone overly enthusiastic. Maybe if you are in an in-house position where they don't know the budget constraints, then they might be like asking for a lot of landscaping, and then you just have to push back and say, we don't have the resources. As a startup, I don't think that I have ever met someone who is enthusiastic about patents in that way. Not in the way as I am, or like you and me, and when you work with it, you get pretty stoked about what patents can do. But I think no startups seldom. On the other hand, I have met people who have patented something and believe that they don't need more patents but still develop their products. I think that is sometimes a little bit risky.
SPEAKER_03That is a dangerous source because at some point your protection expires and then you're no longer.
SPEAKER_04Well, you started off, let's say, with a patent from a university as a spin-off. And back then, when it was drafted at the university, the scope was scoped like very broadly because it's like basic research and you didn't know the commercial direction yet. And if you solely rely on a patent that is drafted in that way, when you start to make a commercial business and try to develop your products in one direction, then it's probably a little different than the broad approach, then you might sit with a patent that you think protects your specific product, but it's really hard to enforce because it's not specific enough. I think usually if you spin off from a university, you you likely need one new patent that covers your future path. And the first one is a good defensive patent, I would say more than an offensive patent. Yeah.
SPEAKER_03Makes sense. So when we talk about the patents and the kind of spin-offs of the patterns as well, it makes sense for me to take a step back. As a startup company, when does it make sense to start thinking about patents and patenting your idea? Is it too early when you're just on the initial phase of an idea or being a prototype? Or what's the best advice you can give?
SPEAKER_04Yeah, I think that you have it's a balance in everything in life. Uh, and I think that you should start thinking and learning about patents. Like the moment you are born. No. Uh like when you start your business, you have to start protecting your investments. So every time you put an hour into developing something, you should think about how do I make sure that is not wasted. Right. So just being aware that patents and other IP is there to safeguard your investments and to make sure that you get the return of investment. You get the reward you deserve. Even though it sounds boring, it's part of your life. Accept it and learn. And you know, it's just like you have to have a driver's license when you drive a car. So you should probably also know a little bit about how the motorway, or what is, I don't even know if it's the right word. Motorway, highway, highway, yeah. Yeah. How kind of traffic patents works, right? Because now you're in business. I think that is one thing. And the other, and you shouldn't postpone it till later, because later you're also busy. So you should just accept the fact that this is an area that is extremely important, not just for you, but for investors, for upcoming partners, for attracting funding. There's so much you can do with patents if you use them the right way. And I think that is also kind of builds when it's when is it too early? I mean, if you think about patents as a resource for information, you can get a lot of information from there and get to understand patents better. So I think making searches early on and testing out the waters a little bit is never too early. But filing patents can be too early if you don't know why you are filing. You shouldn't just file a patent to have a patent. If you need a patent to attract funding, then patent something that gives you the funding but doesn't ruin your business strategy. So maybe you should always think about if you are ready for the next steps. You're ready for making all the data needed to make it a strong patent. Don't just file like a mediocre I did what I could patent, make one that is actually serving you well. Of course, you can be in a situation where the competitive landscape is so populated that you need to act fast. But then you should plan ahead and have the budget for your patent and your experiments or drawings, depending on the field you are in. Was that answering your question? I think so, yeah. Yeah. So I think my best advice for startups is actually to always think about what the goal is with this patent, and then to figure out what that means and what you then need to what it needs to cover for you, and what it certainly doesn't need to close for you in opportunities in the future.
SPEAKER_02So that's really good insight in the sense of your patent strategy for getting funding but not interrupting your business. How do trade secrets fit into this? Because you may have a startup that has a trade secret and getting a patent and showing you're innovating is important for investors. How do you balance that part of it?
SPEAKER_04Every patent or every invention that is not yet patented is, in my view, a trade secret and should be treated like one. That means that in different countries, there are different rules around how a business can protect trade secrets. If you treat them like trade secrets, if they are abused, you can enforce some rights. So not only just for safekeeping, but also to position you well in terms of the law for getting damages. It is a good idea to be very aware of how to treat trade secrets and share on a need-to-know basis. If you can avoid it, don't tell the whole story to one person, but tell some people a little of it and other people a little of it so they never can do what you do. So you don't give anyone the recipe of your invention at one point. If you want to pitch your idea or invention, pitch what your idea does instead of how it does it. So prepare, make a note before you go to a network meeting and write, okay, I can say this and this and this, and I will never tell them how it works. So you can train your brain to not just say it. Because we get we are very enthusiastic when we have found something great or believe in our products. Control yourself, do the networking, but also think about what could damage your business. Actually, I have a little anecdote on that.
SPEAKER_02You got it.
SPEAKER_04It's called the stop, go repeat method. Stop, think, think about your options, protect, then go do it and repeat. So stop, think, options, protect, and then go and repeat. If you have that in mind every time you network, you should be what I call justified paranoid enough to avoid spilling the beans all over the place.
SPEAKER_03Very good. So we're talking about here, like someone has an idea and not necessarily spilling all the beans or the trade secrets, you kind of share parts of it. When you're at a point and you want to start searching for patents, whether it's in the free resources or the vendor databases, how does searching patents help shape the direction of an innovation? It's not just searching to protect it, but what are the benefits and directions are there?
SPEAKER_04So if you are so lucky that you have someone who can search like really precisely and with the right tools, then of course you can search goal-oriented towards the solution you believe is the right one to see how others have approached it before you, what kind of basis knowledge there is, or which variations there are on that element or this element and so on. So you can use it as a library on elements, features, or ingredients that are in your invention. While you are developing, usually your business starts off with one project and then it has more projects. A good standard is to monitor your competition in these different fields or in technology areas to always get a notification when. Your competitor has filed something, or when something new pops up, because that will generate a list of okay, so our competitor is moving in that direction. Why is that? Maybe there is something in the experimental data or their drawings that can push your innovation into a better direction or warn you of something that might go wrong. There's so much knowledge and patents. Of course, it is not written in a language that is fun to read. But I would say everyone, at least if you are in life science biotech, something like that, the examples are really a nice read and the figures, and often that is enough in a way to get an idea about where your competitor is, if you're not a patent attorney. When you're in more like technology, like mechanics, then the drawings are often what I know my colleagues decide about whether that's relevant or not. I think that patents are the most important publications out there on your field and your competition. There are also press releases and pipelines. That's part of the story. If you read a press release on some awesome results and you go back and find a related patent, you might quite fast figure out how serious this business is because you can look at how many countries they are filing in and so on. So you can get a feeling of how important that is for your competitor as well in that way. And then you might be able to make a decision on whether you should continue with a project or not, or in which direction, or stop because the competition is already further ahead. Yeah.
SPEAKER_02Have you ever seen it where in the course of a search or a project or a landscape, you quickly realize you need to pivot, like even before you get the results out of it?
SPEAKER_04Yes. I have worked a lot with peptides and proteins in life science. When insulins in the good old days were not so engineered yet, it was easy to get a patent on some modification. But if you take the insulin molecule now and try to do some changes, you really have to change a lot to get a patent because it has been worked so much, that poor molecule. But then at some point you are the one who makes prior art in your own field to get citations of yourself because you may be, I don't know, characterized an impurity in one example in a patent application that is 10 years old, and now today that impurity is your invention, and there you have it, then you cannot patent it. So yeah.
SPEAKER_02So you're pivoting, like whatever you're you know, you think of it like I think of like these projects often have a thesis, like an expected result out of it.
SPEAKER_05Yeah, which you're expecting.
SPEAKER_02And as you're going through it, you realize that you're totally wrong on it, and then you might modify the project in the middle. I'm just kind of curious if you run into that, how you deal with that.
SPEAKER_04I had a case where we wanted to file a patent because this was genius, and then we made a search, and then someone else was as genius as we were just a little bit further ahead or like years ago. The interesting part was that when we dug deeper, we found out why the clinical trials didn't work. And that means that the business I represented could then use that knowledge to then try to make a pivot towards a peptide that overcame those issues, kind of focus, refocusing on okay, Bummer, our genius invention is already invented, but how can we now use that knowledge to pivot around that issue that we now have seen in clinical trials? Yeah. Because now they didn't need to do the clinical trials by themselves, because someone else did them for them. Yeah. So I guess that is the kind of guided pivot towards new opportunities instead of being devastated that someone else invented this before you. Now you said like if you find nothing, I mean, if you find nothing, I don't know if that's something I have ever found. I have one set of patent that went through without any prior art, and the only feeling I had was, oh man, I claimed it too narrowly. Oh because you should always find something, right?
SPEAKER_02I can tell you in the 19 years I've done this five times to the search, and I was shocked that there was nothing there. And that's when you freak out.
SPEAKER_04Yes, exactly.
SPEAKER_02You freak out, what have I done wrong? What whatever is it? And then you go back, at least for me, you go back and relook at okay. Did I miss anything? Did I approach this? You usually get a second, third person to relook at it, and sometimes you find you actually run across something that's truly inventive.
SPEAKER_04So that's awesome. Once you get over the shock, yeah. I think that's actually very important. The discussions I sometimes have with inventors or startup CEOs is they are so afraid that we find something in the prior art. And I think it's often like trying to train them to understand that isn't you must find, usually you must find something so that you know where your invention fits in. Because if there's nothing, it's really hard to explain why it's an invention. But if there's something, then you have a springboard to explain your new effect or your inventive step, inventiveness from. If you don't have anything to stand on, how do you explain it? And I think that is so important to know prior art. It doesn't help to look away and not find it. And you really want to find it so you know where you're standing it's so you're not surprised by it later on, right?
unknownYeah.
SPEAKER_02Yeah, and I should preface when I say didn't find anything, usually you can find something, but it's much further away, much more distant, not as similar as you expected. It could really be that you know it definitely has an inventive step, may have a few inventive steps in it.
SPEAKER_03Nice. All the insights, so it builds into well, like you've done your search, you don't find anything, or you've done searches and you find a lot of results in navigating these. So if a startup or SME is doing their own patent searches, in your mind, what should they be careful about? And I'm also interested in what the benefits are of a paid database versus using free resources and what should people be aware of?
SPEAKER_04Yeah. So sometimes I do courses at universities, and this is always something that I stress because Google Patents is awesome, but only if you don't put your detailed invention into the search terms, because Google is also learning from your searches, and it's actually quite dangerous to generate a search history in such a database, because then suddenly you have made prior art, or someone else can get access to what you searched for and so on, combine it in a new way, and then suddenly they have more resources than you can act faster, and there you are. No more invention or patent for you. But I think from being a startup myself and really wanting to have access to search to paid search platforms, I know it's really expensive if you're just starting up. Because it's good quality, it's safe, the tools are probably better for you know keyword highlighting and combining searches. So I get that it is a huge investment if you have to prioritize your budget. If you have to use the free versions, I would say keep it light, keep it high level, keep it on you know competitor names, keep it based on technology area or a certain element you are playing around with, but don't say, don't put the exact details in that that you change or try to solve. Just a little bit like networking, right? Search for what it has to do, but don't tell the machine how you are considering to solve it. Keep the details out. Yeah, but for me, I couldn't live without professional search tools because I use them as a reading support when I read patents and I have to read a lot of them. I like that I can highlight certain words, save it, and then I can sort things in different folders and so on, which becomes really tedious and manually if you have to do it in PDFs. I think there is a huge upside, but your business has to be in a certain kind of size to invest into such expensive tools, I guess. Yeah.
SPEAKER_03So it's weighing up security, pricing, time you spend on saving information and your detail and your needs, right?
SPEAKER_04Because if you are not investing into an expensive search tool, that's probably because you're not at a level where you need a lot of information around patterns. Then you may be in the ideation phase, a crude search in kind of high level is good enough to define your scope in the beginning. But at some point there's a shift also on your needs. You know, at some point you need to be sure that there's no problem. And then I think you need this specific search. And then I think there's probably no way around asking someone who has access to help you with a search or to figure out which tool is the one you want to invest in for a year.
SPEAKER_03Makes sense. And would it make sense as a start again? They've gotten limited funds many times to go to professional search companies to help them with searching.
SPEAKER_04Yes, it makes sense. I think sometimes the PTOs often have some kind of early search help. If you can define claims, claims in a way, they can help you with this crude novelty situation thing. And some of them are really good. I think you should exhaust those options first. So if you're thinking about filing a patent, do I need a novelty search before? Maybe, maybe not. Depends on how your budget looks. I mean, the optimal thing would be to ask a professional to do it, but it can also be really expensive. Sometimes filing the patent is cheaper to then pay the search fee and get PTO's search report back and evaluate the prior art to see if your invention is novel, whether you should withdraw the patent application again and refile it, or if you can continue on with that for the PCT phase. But I think that budgeting for your patents, searches and professionals to support you is very important. And that's probably one of the things that's also overlooked. Not just patent the support for drafting patents and file them, but also to maintain them and do the search, get that freedom to operate, because as a small business, you don't want the problems. And there are certain time points where freedom to operate, search and evaluation is really good. And you need a professional one because when you don't know how to use the search platform, then you will not find the right pronouncard or documents, right? So you need support. We cannot be specialists in everything.
SPEAKER_02So kind of adding into that, is there any points or parts through this path as a startup, like ideation, to protecting your idea to marketing it, or parts where you're getting investment, or parts where it's just becoming a really big product potentially, where it's clear it's time to get professional help? Because you can do searching on your own. I mean, it's clear, especially if you're coming up with ideas, you might kill those ideas quickly. But at some point, when do you think it's time, or what do you think are some of the indicators that it's time to get that professional help to help answer that question more concretely than you could doing it yourself?
SPEAKER_04I think usually I would say if you get excited and to really want to show other people what you've done and feel this tickling in your tongue, whatever, you know, the real excitement, then you should stop yourself and talk with a boring patent attorney or a searcher, you know, someone who helps you with that, not with the enthusiasm, because it can also certainly kill that. No problem. If you talk about patents, everyone can fall asleep. But you should definitely think about your patent attorney before you speak to someone else, because they can help you define, make that little list of things you can say and not say, for example, depending on where you're heading. If you're very excited in your business meetings, also be very much aware that you inform everyone else at that meeting where you shared all these exciting thoughts, that that's a trade secret now, that it should not leave the room before you have talked to a patent attorney. Or figure it out what's up and down, what's what's protectable, what's not, what's the next steps, and so on. So I think, and if you are so lucky that you have search professionals in your business, which startups not often have, then of course starting to figure out what's there from competition is also always important. It doesn't help if you're excited and then someone else was there before you. Yeah. Was that a little bit yeah. I think if you are aware of a competitor who does something like you do, or if a competitor has shared something, let's say a poster or something at a conference, before you start drafting emails inside your business, like, oh, and then I copied that competitor's approach, blah, blah, blah. Uh, then it would be better to say nothing and maybe to discuss it in a meeting where no minutes have been taken, no rec recordings have been made, and then to talk to someone about what kind of patents are there, um, and make sure that you're not infringing, because having emails lying around that say if you copied someone is really not such a good idea. That would be a good point also to discuss with some pros.
SPEAKER_02That sounds like a dangerous time. Yeah, I would agree.
SPEAKER_04Yeah, what you I mean, I have seen such emails, it's interesting. Ouch.
unknownOkay.
SPEAKER_04And I mean, when you see it after the fact as a patent attorney, you just try to deal with it in a professional way, I guess. But you really hope that there will never happen a discovery or something in a litigation case in the US particularly.
SPEAKER_02You're moving to defensive or damage control at that point. There's something you can do. It's too late. Someone who doesn't know much about patents didn't understand how concerning that is at that point in time.
SPEAKER_04Or if you talk about your own inventions and someone in that email's read replies to all and be like, oh well, this is not new. Someone else did that, or this is obvious to everyone. If you put that in writing in your emails, I mean it can be devastating in a litigation case where you know where your opposing party can use that as an argument and be like, yeah, but they knew that it was obvious at that point in time when they filed it. So they are cheating the system. Yeah. That was a little detour, though, from searching.
SPEAKER_02This is called patent matters. It's not called patent searching matters. So which is which patent searching does matter, let's be honest.
SPEAKER_04But this is absolutely. I mean, one cannot be without the others. At some point, you have to search. You really hope, especially when it's a freedom to operate, that there's nothing there. But if you find something, at least you know it. So look for it as early as you need to.
SPEAKER_02So do you that this brings up so do you ever run into the startup or the CEO who's so anxious about it that they almost refuse to ask that question? Like they would rather not know the answer because they are so worried about it. How do you deal with that if you do run into it?
SPEAKER_04Yeah. I mean, freedom to operate searches and analyzes are very it's like one of the most expensive searches and analyzes that you can basically order from your service providers. So no one is really excited about spending that money. When I talk to someone who's so afraid to make a freedom to operate, it tells me a little bit that they already know maybe that there's something going on. So sometimes that means that I have to ask questions that help me to understand why they are so afraid. Because then sometimes that leads me to a publication that is exactly the issue that gives them a stomach ache, and then I can just look that up, see if there's an equivalent pattern, and maybe if it's not a problem, then it's easier to get the freedom to operate search done. But if it's kind of the problem that they feared, then we need to discuss how to mitigate that, or whether there's some prior art we can use to invalidate the patent, or whether it's time to negotiate, or maybe pivot, or whatever else solution you have at hand at that point in time. But I think usually if you're so against freedom to operate searches, it's because you know that you've got some inspiration somewhere.
SPEAKER_03But I guess it could also be that innovators they already know they're uncomfortably close to another idea that they're developing. So is there any kind of creative ways to steer a direction for a patent then?
SPEAKER_04Yeah, sure. If you don't want to find something in a freedom to operate when you're done developing your product, then you should do a landscaping.
SPEAKER_03So, how would innovators deal with existing patents that aren't comfortably close to something they're already developing? Is there any tricks to steer this?
SPEAKER_04Or how would you if you don't want to find problems when you have made your product or your prototype, for example, in a freedom to operate search, then you should start searching earlier in a landscaping search. Landscaping can be both trying to find novelty destroying prior art, but you can also twist it towards the freedom to operate way of searching and then try to carve out the areas where there's no not so much going on, or at least stay clear of the big guys so that you can approach your smaller competitors and make collaborations. There are like a lot of creative ways in that way to try to make some riddle room. But in general, I think that yeah, the smaller you are, the more you would probably rely on trying to figure out where your peaceful play space is before you start developing the idea because you put so much energy and resources that you get from somewhere else, you know, investors. Um maybe you're taking a loan, and you really want to make sure that it can also fly and give you a return of investment when you're so small, because the big guys can deal with the freedom to operate issue by hiring expensive lawyers and dealing with the issue or paying a good royalty to a competitor, but as a small player, you might not be in that position, so you should mitigate much earlier than maybe the larger ones. At least that is my personal opinion. I know a lot of my colleagues have different opinions. Some are also just no risk, no fun. You know, if my product is good, my patent that I filed myself is good, then it's strong enough to withstand the pressure from when validation actions or whatever. But I don't know.
SPEAKER_03Yeah. Takes cuts. So I guess there are companies that could go for. Either a cautious or more aggressive IP strategy.
SPEAKER_02So this everything that you we've had is really good insight into here in the process of searching and the decision point. How do you see risk fitting into this? Like a company's attitude towards risk, you know, because business is risky. Some businesses are more risky than others. You can do the move fast and break things and just not look at anything. That's pretty risky versus the we want to make sure that we've dotted every I crossed every T. How do you see risk being a part of this process, this decision-making process, and the decisions that are made based upon higher risk companies versus lower risk companies?
SPEAKER_04Yeah. I think it depends on what your business model is. So you can have your business model that is, I make inventions, I file patents that cover my invention, I develop my product, and then I will avoid infringing others, and that's like de-risk everything from the get-go, be very kind of protecting your own business, and that's it, if at all costs. Then we have other ones that have a business model that is maybe a little trolly, you could say, very aggressive, where you have, for example, let's say a marketed drug product that has been on the market for ages. They would then see if they can find anything relating to that drug that is risky, like a risk for the patient, and then they would try to patent that or a solution to circumvent that, and then they will give you a great offer to pay a lot for that patent.
SPEAKER_03Basically, what's the when you try and bid money out of someone for extortion?
SPEAKER_02You're talking about extortion. Yeah, sorry. Oh my god, that was.
SPEAKER_04Yeah, so it's so they will offer you the patent and then almost extort you or your business, saying if you don't buy this patent for this price, we will, I don't know, ask the FDA to put a warning in your label, and then you have to pay us more because then we are a freedom to operate issue for you at that point in time, because you're forced to put this warning in your label. That is a very aggressive way of patenting. They probably also made a really nice patent search because they would have to make a timeline and see when the patents of that drug go off patent, so they know when this business is under pressure to try to extend their portfolio with additional information. Some would call that evergreen. Some businesses have that aggressive and very iffy approach to patenting. And then there's everything between the cautious one, is probably if you have the money, you can do all the prep searches and file what your business needs. If you want to show some muscle and your expertise in your area, you can start patenting around the area. When you have projects and data for that, then you suddenly have a portfolio that you can negotiate with with your competition. Then it's like patents are part of your business model to expand or collaborate and negotiate licenses. There is certainly also some uh aggressiveness if you're in a very competitive landscape. Sometimes you bombard the field with patents of all sorts, even though maybe your data doesn't carry it that well, just to block your competition from being able to patent that area. Yeah. So I think depends on what your goal is all the time, right?
SPEAKER_03For a startup or any company, really, there's a lot of thought that needs to go into how the role of patents and how is used in the overall business strategy. So we know some companies would use to try and block competitors, some would try and use it to attract investors or just adding value to the overall company. In your mind, what's a good approach to creating a strategy around patents in any business? Yeah.
SPEAKER_04That's actually a very good question because I see a lot of CEOs who have seen these uh very tale stories that happen once in a while, like for example, with the CRISPR pattern that started at the university, and now everyone who does anything with CRISPR basically has to pay royalties to those holders of that first CRISPR technology patent. I know who has spun out from the university is after that kind of technology patent because that's such a nice story, because that really mattered and made people really rich. So I think this balance that's one in a million chance, a little bit like that's also a lot of skill, but also a lot of luck that there was nothing there before. So I think the most standard thing is that you will probably not get that great patent that now will serve you well for the next 20 years whenever someone does something in that field. So you should not build your business idea or business of how you can try to block someone else. The best basis is where is my business now and where do I want to go? What type of products do I want to bring to the market and then focus on that? And what do my competitors do? As long as your budget and resources are narrow and focus on exactly what you're doing. Once that is a success, you can be more creative and maybe expand a little. But I think there is some alignment of expectations to be done. It's not that I'm a pessimist because actually I always get very excited when I get a new invention disclosure and I think, wow, this is awesome. And it's probably the next big hips. So I understand how excited you can become. But it's so important to understand that patents can also humble you a lot because there's often much more out there than you think sometimes. Especially if you only have read like peer-reviewed papers. I said before. There's so much more information in the patent databases. If you never looked there, you'll probably be shocked the first time you took a look.
SPEAKER_03Do you have a follow-up, Jonathan?
SPEAKER_01I don't have a follow-up. That was a great insight, though.
SPEAKER_03So it's interesting you say that patents can actually harm you a lot as well. I think it's an insight very few people actually realize. So you've obviously been both involved with patents searching patents for a long time. What have you seen as the biggest shifts when it comes to IP rights within startups over the past, let's say, five years? And also what do you think are causing those shifts in the searching industry? Good question.
SPEAKER_04Um I don't know if it's a shift as such.
SPEAKER_02Maybe think how has it evolved as opposed to a shift?
SPEAKER_04Yeah, I think with all the AI stuff, everything has become so easy. So I have now recently seen actually last week or so, someone commented on one of my on my LinkedIn posts that they think that they can use ChatGPT to do so much for them. And that makes, I don't know, hair eyes in my neck and get me sweaty all over because I get so nervous when people really believe that AI handled by a non-professional can ruin so much. I think that yes, I'm all for using AI. No, I haven't done it on patent matters because I will not put any confidential information or details into a black box that I don't understand. I'm not a software engineer. People who do AI, whatever put profession they are, they are specialists. So I think that that is one of the most scary developments is that AI can do a lot. And I think that if it's used by professionals in a professional way, it can't make things cheaper and faster. But I think if the development of AI makes non-experts believe that they can do it on their own, I can just see how many ideas with great potential to become really good products suddenly can fail because they can't be patented, because confidential information was leaked, because it was put into a non-secure software AI model. Or yeah, the wrong questions were asked, the wrong strategy for drafting was used, and so on. So I think it's just AI is both a huge opportunity and so scary. And maybe I think also depending on how the funding opportunities are, the risk taking is a little bit like the less money we have, the more risk we take. But then what if you succeed and you took the risk, and here comes the surprise? So lately I have seen a lot of okay, but we take the chance, and then when you took the chance, then you regret it afterwards, and then you look to your experts and why didn't you want them? Like, yeah, maybe you could check that email where I want you. So it's really difficult for businesses to balance the risk versus action versus understanding how it can harm your business to not be preventing problems. Yeah, I think those are the ones that I see the most. But I also get sometimes I don't want to do the search because I'm afraid of finding something. So I can totally relate that it sometimes feels easier to close your eyes and hopes for the best, but the surprise is not nice. The surprise is worse. I promise.
SPEAKER_02That's interesting because that's a different perspective as a searcher. My job is always to find it. Searchers get angry when they can't find things. It's the opposite. When I manage a team, I don't tell them what side the question's being asked on. Like, you know, especially with validity, they want to sue someone with this patent because you know they want to make the customer happy. So we generally don't tell them which side it is. So they're always just on that hunt to kill it. But yeah, you're on that other side wherein you finding it, you can shatter their hopes and dreams, unfortunately.
SPEAKER_04Uh pretty much, yeah. Not a nice conversation.
SPEAKER_02No.
SPEAKER_04I mean, it's it's it's um yeah, it's not a nice conversation. But on the other hand, then usually with some experience and maybe even a further conversation with someone like you, Jonathan, will often lead to, you know, okay, I have some bad news, don't kill the messenger, but I also can suggest a solution. If you go into that conversation with, okay, the patient is not dead, we just need another surgery, and it's actually routine, it's all good. Then you're in a better position. But yes, you can shatter dreams and it's not fun. That's actually the worst part of my job. I like it when the enthusiasm is there and we're all happy and you know, going to the same goal and everyone is excited, that's the best part, of course.
SPEAKER_02I will say that when we try to answer those questions, at least for me, I do try to say, well, this idea is dead, but I didn't see this. Whatever you can give in terms of any sort of insight, so that a decision can be made that can at least move things forward. Even the decision of, I would think, that you can't get that idea, then you stop spending money on it. Sure. Long-term thing, not a short-term thing.
SPEAKER_04Absolutely. And I think that the more mature your CEO gets, or the more mature your business is, the less you maybe identify yourself and your worth with your invention or your one idea. If you have one project, everything is like on that, right? Everything counts. And then it's a big, big, big, huge, devastating bummer to know that there's a big problem that cannot be solved, maybe. But the more projects you have, the less your success depends on one thing. The risk is spread, and you don't feel as awful to close one project down. With the level of maturity, the devastation doesn't hit so hard, or the consequences are not that big because the risk is. Yeah, you don't put all the eggs in one basket.
SPEAKER_03So you've given a lot of golden nuggets throughout this session, and your experience is, I mean, all of your knowledge. From your experience of advising startups throughout throughout time, but over time, what's the most common IP mistakes you see early on?
SPEAKER_04Thinking that you can put the responsibility for your most important assets into the hands of someone who doesn't know your business. Just thinking that your patent attorney can fix a patent based on very limited insights. I think that is one of the biggest problems I see as a business owner or inventor who wants to patent a future product in the market. You cannot, you know, of course, your patent attorney is really good at patenting, but if you if you give them nothing on your business direction, then they will do their best to cover it all. And if you cover it all, you cover nothing. So I think that is actually one of the you know drivers also of patents matter. You have to think business to make good patents. A patent is just a piece of paper if it doesn't protect your business. The same goes for not wanting to search for freedom to operate issues. You want to fight them because you want to not have that problem when you have spent thousands, millions, trillions of hours and chronos, euros, or whatever currency you have. So I think that's probably the biggest mistake that my patent attorney can fix it, or you can just write a patent within like five minutes, right? You know, this kind of or can you just quickly look at this because it's really a problem for me and suggest something, and you're like, okay, or can you explain all this? No, I don't have the time for that. Okay, then I can't. And I think that's really difficult to explain how much easier everything becomes for your patent attorney or your searcher if you actually put some time into explaining what you need, why you need it, when you need it, what's up next, what you certainly don't need. All these things are so important because otherwise we will just do whatever we can based on our expertise and our experience. But it's still just a guess if you don't give us the guide.
SPEAKER_03Very good advice. Thank you very much, everyone, for tuning in to this. It's been a pleasure. Thank you, Jonathan, as well, for your insights.
SPEAKER_02So I learned a lot.
SPEAKER_03Yeah. Thanks for the great questions.
SPEAKER_04Patents are awesome, and they matter, right?
SPEAKER_01Patents matter.
SPEAKER_04Yeah, they do.
SPEAKER_03So for anyone who would like any advice on Good, like what they heard from her, we shall link to her websites in the comments and the description. Yeah, so feel free to reach out to her and us about any questions. Thank you for tuning in.