Why do Startups Patent?

Ted M. Sichelman, University of California, Berkeley, School of Law
Stuart Graham, University of California, Berkeley, School of Law

Abstract

Numerous scholars have proposed many different explanations for why inventors and innovative companies patent. Only a few scholars, however, have conducted empirical studies seeking to confirm or deny these theories. Furthermore, there are only a handful of studies examining how entrepreneurs and start-up companies are affected by and use the U.S. patent system, and none answers the question presented here. We first briefly survey the dominant theories of why innovators file for patents and why they forgo patenting, focusing on how well, if at all, these theories apply to start-up companies. Next, we examine the existing empirical data on the topic and find it generally inconclusive. Last, we describe the Berkeley Patent Survey, the first comprehensive survey in the United States of patents and entrepreneurship, which is currently underway at the direction of the authors and other investigators. In particular, we discuss the survey questions designed to answer why entrepreneurs and start-ups patent (or choose not to do so) and offer some hypotheses based on previous research. We expect the results to be available in 2009, which we will describe and analyze in Part II of this Article.