Why Patent Competence Is a CEO’s Responsibility

Why outsourcing it to a patent attorney is one of the most common — and expensive — mistakes founders make

There’s a simple test for whether a patent actually matters:

Did it change your competitor’s behavior?

If the answer is no, then whatever you have is not protection. It may be a patent in the legal sense, but it is not a business asset. It did not alter the market, it did not constrain alternatives, and it did not force anyone to make a different decision than they would have made without it.

This basic idea dovetails directly with the argument in “Myth: Patents Have Intrinsic Value” — that patents by themselves do not have value unless they actually influence business outcomes.

This is the point that most conversations about patent “value” never reach.

Entrepreneurs talk about patents as if they are talismans — something you acquire and then have.

Investors talk about them as line items.

Attorneys talk about them as compliance artifacts.

But the only question that matters — Does this patent affect how someone else behaves? — is rarely asked.

CEOs Are Responsible for Patent Competence — Not an Outsourced Patent Attorney

One of the most persistent misconceptions in startup land is that hiring a patent attorney transfers responsibility.

The thinking goes something like this:

“I hired a ‘reputable’ firm. They know what they’re doing. We’re protected now.”

That belief is wrong in a fundamental way.

Patent attorneys are not hired to decide what is valuable. They are hired to draft. They are workmen hired to do a single job.

Just like a house painter does not decide what color your house should be, a patent attorney does not decide what should be protected.

They execute instructions — and that is why this ties directly to the core message of “Your Patent Attorney Is NOT Giving Business Advice” — attorneys give options and draft claims, but they do not determine enforceability or business relevance.

The hardest parts of patent value lie upstream of drafting:

• What feature actually creates customer value?
• What part of the product competitors cannot avoid?
• What behavior would a competitor be forced to change if this claim were enforced?
• What cannot be patented and therefore should remain a trade secret?

These are not legal questions. They are business questions — and CEOs must lead them.

The Patent Attorney Will Never Tell You If Your Patent Is Good

This is a critical point that founders often miss.

A patent attorney will never tell you:

• Whether the claims are commercially meaningful
• Whether infringement is detectable
• Whether enforcement would be realistic
• Or whether the patent would actually pressure a competitor

Not because they’re hiding anything — but because that judgment is not theirs to make.

I talked to a CEO last week who asked his patent attorney about valuation of their IP, and the patent attorney had no idea – NO IDEA – how to figure out what makes their own work product valuable. The CEO fired that patent attorney (long after the patent was filed and the patent attorney was paid in full).

What Makes a Patent “Good”?

Determining whether a claim is “good” requires answering questions like:

• Who would infringe this?
• How would we prove it?
• Would the accused product need discovery to establish infringement?
• Is the claim single-actor or multi-actor?
• Does the claim map cleanly to a product that generates revenue?

These are enforcement and licensing questions. They sit at the intersection of law, business, and market reality.

Patent attorneys are not paid to answer these topics.

This parallels the argument in “Patents Need to be Detectable” — that undetectable claims are worthless in court and therefore worthless as business assets.

If you ask a patent attorney whether you should get a patent, the answer will always be yes — because they are ethically, professionally, and economically incentivized to write patents. (It is not just that they need to feed their family, it is a matter of legal liability if they even hint at answering these questions.)

Competence Is Not Strategy — It’s a Prerequisite

This is where the conversation often gets muddled.

This is not about having a “patent strategy” in the abstract sense. It’s not a slide deck. It’s not a vision statement.

It’s competence.

Competence means someone on the executive team understands:

• Patent licensing
• Patent enforcement
• How claims read on real products
• And how patents influence business negotiations

You don’t need that person to draft patents. You need them to decide whether a patent should exist at all, and if so, what it must accomplish.

Most CEOs don’t have this competence. That’s understandable — patent law is a specialized domain. But the mistake is assuming that competence magically appears once you hire an attorney.

It doesn’t.

If no one internally can look at a claim and say:

“Yes, this would force our competitor to redesign, license, or walk away”

then you do not know whether you are protected. You only know that paperwork was filed.

Patents Change Behavior Only When They Intersect with Value

Here’s the core idea that everything else flows from:

Patents only matter when they intersect with value.

A patent that covers a feature no one cares about is irrelevant.
A patent that covers a feature competitors can easily avoid is irrelevant.
A patent that covers an implementation detail instead of a business-critical function is irrelevant.

Competitors change behavior only when a patent blocks something they need.

That “need” might stem from:

• A revenue-generating feature
• A performance advantage
• A regulatory requirement
• A cost structure they cannot abandon

If the patented claim does not sit on top of that pressure point, it will not be licensed, enforced, or respected.

It will be ignored.

This aligns with ideas in “How Patent Licensing Works” — that the goal of patent licensing is to stop competitors from copying, but that outcome only happens when the claim actually read on their behavior.

The Danger of Undirected Disclosure

There is another failure mode that is even worse than useless patents: harmful ones.

When a CEO simply hands over a product description and says “patent this,” the attorney will often disclose far more than is strategically wise — especially in software and AI.

Black-box logic gets spelled out. Algorithms get described in detail. System architectures get frozen into public documents.

And all of it is now searchable, citable, and usable by competitors.

If the core competitive advantage cannot be meaningfully enforced via patent claims — which is often the case — then disclosure actively weakens the business.

This concept is discussed in posts such as “AI Startups: Protect Everything EXCEPT the Patent”, which argues that for AI companies, patents on obvious features often backfire.

This is not a drafting error. It is a leadership failure.

Prestige Is a Marketing Story, Not a Performance Metric

There is no such thing as a “prestigious patent attorney” in the way founders imagine.

Law firm branding, office size, holiday gifts, and client lists are not metrics of patent effectiveness. They are metrics of marketing success.

A beautifully formatted application with sloppy claims is still sloppy. Claims that are a whole column long, multi-actor, and practically undetectable do not become enforceable because they were written by a large firm.

CEOs often mistake polish for protection.

A patent portfolio’s quality is not measured by:

• How expensive it was
• How famous the firm is
• Or how many patents were filed

It is measured by whether the patents can be used.

The post “Your Patent Attorney Is NOT Giving Business Advice” reinforces exactly this point — that attorney prestige does not equate to business protection.

Why Patent Attorneys Can’t Fill the Gap

It’s tempting to think the solution is “a better patent attorney.”

It isn’t.

Patent attorneys are structurally the wrong role for this responsibility. They are paid to draft and prosecute. They are not paid to tell you:

• “This feature doesn’t matter.”
• “This claim will never be enforced.”
• “You shouldn’t patent this at all.”

In fact, telling you those things are against their own incentives.

This is not a moral judgment. It’s an economic reality.

Which is why the competence must exist on your side.

What Real Patent Competence Looks Like

A competent patent decision process looks very different from the default model.

Before drafting begins, someone asks:

• What competitor behavior are we trying to change?
• What revenue stream are we protecting?
• What part of the product is non-negotiable for the market?
• Can infringement be proven without extraordinary discovery?
• Is this better protected as a trade secret?

Only after those questions are answered does drafting make sense.

In that model, the patent attorney becomes what they should be: an execution layer. An overpaid one — but not the strategist.

The CEO Cannot Outsource Responsibility

This is the part that many founders resist, because it’s uncomfortable.

You cannot outsource this responsibility.

Hiring a patent attorney does not absolve you of the need to understand whether your patents are useful. If you don’t know how to evaluate claims at a high level, you don’t know whether you’re protected.

That doesn’t mean you need to become a patent lawyer. It means you need competence somewhere on your team — someone who understands patents as business instruments, not filing artifacts.

Without that, patents become theater:

• Impressive to outsiders,
• Comforting to founders,
• And irrelevant to competitors.

The Final Test

Strip away the mythology, the prestige, and the paperwork, and the test is simple:

Does this patent force a competitor to do something they would not otherwise do?

If yes, it has value.
If no, it doesn’t.

Everything else — firm size, claim count, filing dates — is noise.

And the responsibility for making sure that answer is “yes” belongs to the CEO.

Not because it’s glamorous.
Not because it’s strategic window-dressing.

But because competence in this area is a prerequisite for building a defensible business at all.