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Patents for the Little People?
_ph1ux_ asks: "I have an idea that i would like to patent. I have called several patent attorney's in the San Francisco Bay Area and inquired about the costs associated with doing a patent search and filing. I was quoted a flat fee for the search by some, ranges by others - and some more sound sounding advice from others. Some attorney's want $450 for the search and a range of $3-6,000 for the filing - with up to six months before they are ready to just file the application for you.
I have been researching on USPTO website to see if there are any pre-existing patents that cover my idea now for several days, and so far have found none. In the past I was able to quickly locate existing patents that thwarted my previous patent attempts - so this time it looks promising. My personal feelings for attorneys and lawyers aside - I want to know what have other slashdotters done with regards to pursuing patents, specifically if it is at all possible for an IANAL to successfully apply for a patent (cheaply)? Can you tell me what other avenues there are for me online or otherwise, while not giving away a large stake in my invention?"
This is nice and timely! I've been thinking about this myself lately, and I've wondered something different: In todays highly litigatious society, are you opening yourself up for alot of hassle in filing a patent? No question that getting your origonal idea locked in before anybody else is a good thing, but what happens when somebody challanges you, or you have to challange somebody else? It may be a remote possiblity, but are 'the little guys' assuming lots of personal risk in basically defying the world to capitalize on their idea? You find a lawyer with a flat rate to file your patent, then what? Where are you going to get the tens of thousands it would likely cost to defend your patent in court? Did the flat rate cover him actually reading the patent to determine if it's overbroad or worse, not broad enough? There seems to be alot to think about with a patent, especially if you don't have in house counsel at your disposal. This is a pretty glib way to think about it, putting patents in the category of those nice things that protect big business but are out of reach of the little guys.
"These people look deep within my soul and assign me a number based on the order in which I joined" --Homer re:
You must use a patent attorney ... why ... cause when YOU fuck it up and loose your patent and money because you did not use a professional you will look like a complete moron who got what he deserved.
... all those profesional web developers charge huge and varying money ... can't I just do it for nix ... HTML looks easy after all" ... fast forward 3 months and then they wonder why their site has security holes, looks like shit, gets hacked etc. Do you see the parallels
... if it is worth doing do it properly. Spend the money on a professional ... don't do a half ass job your self.
... well, almost (1 year away from being one) and studying IP law right now ... and from a family working in Patent law. (although I have spent the last 7 years installing networks). Get on with your programming and leave the lawering to the lawyers
"so I want to set up a website
Moral of the story
BTW IAAL (I am a lawyer)
J
If you don't want to spend the money to get a patent, I have to wonder if you plan to make any money from it. Is this a Patent Granted on Sideways Swinging sort thing?
we typically have BS degrees in Eng, CS, Phy, Chem, and Bio.
In fact, you cannot even take the patent bar without a tech degree....
Sig:
Navy nuke sub lifestyle?
Before you turn over your invention to unicron, you should definitely have your lawyer write a non-disclosure agreement. If you disclose your invention to the general public, you quickly become ineligible for a patent in the United States. Only something that's currently a trade secret can be patented.
Will I retire or break 10K?
I'm not positive, but I guess if you kind of "officially publish" the thing, for example in a peer-reviewed scientific journal, then nobody can come after you and patent it. True ?
The answer is YES... provided there is no "prior art" or it wasn't around before.
Think of windows, macintosh, linux, os/2 and what not. Xerox essentially developed much of what is a GUI, It would be quite easy to proove who did it, however Microsoft and Apple did not invent the GUI so they couldn't patent it and sue each other over it, and Xerox gave it away...
Xerox could have patented it (did they?) and enforced the patent or sold the idea or what, but they didn't - but they could have.
same thing with steering wheels in cars
you can't patent whiskey now or copyright its name because it already exists. But if it didn't, you could have.
See the Pictures of the Flood of '08
Yet another example of why we need a "-1, Wrong" moderation option.
Slashdot - News for Herds. Stuff that Splatters.
I wouldn't claim that anybody at the Office is "your friend", but MOST examiners I know on either the patent or trademark side are willing to help a pro se a little bit. But asking for a little help is like anything else... don't abuse it!!!
Yeah, examiners on either side have a quota, but neither side rewards an examiner for denying applications. That's BS. The "quota" system is calculated by first actions and "final" actions whether that final is an allowance, an abandonment or a final Office Action.
Additionally, there is no "free" law degree for working at the Office. On the Patent side, you can work at the Office without a law degree and without having passed the patent bar. The "perk" of working at the Office is that after a couple of years you can waive into the patent bar without taking the patent exam (by all accounts, an exam that is harder than any regular bar exam). If you end up getting an examiner who is not an attorney, then you are probably lucky, because the attorneys on the patent side that I know routinely complain about the non-attorney examiners who ignore the law. To me, that would generally be a benefit.
Mostly, I'd say the Office is just like any other government agency or company... you get people who care and people who don't... you may get an examiner who "ruthlessly slam dunks" applications, but it is not the majority of them, even come end of the quarter.
-AI worked previously in the USPTO and examined software inventions before the USPTO officially admitted it gave patents for software.
... they were in the games field - like frisbees and such. He was really out of his water in our area. I had to object to his claims (problems in wording and format) and reject them (there was prior art). This case was especially sad because the guy was disabled and could not afford a telephone - I might have been able to help him if we had talked. He was also a bit insulting at times to the examiners (If you go pro se, I recommend you don't do this - it has an unofficial detrimental effect on patentability of your invention). The situation was complicated as another firm had a patent on the invention although this guy had likely invented it earlier. During the prosecution of the application, he sent in some copyright documents to prove that he invented it earlier. That was a bad move as the documents predated his patent application by over a year. I had no choice - I had to reject him over his own publications.
I only saw one pro se (by one's self) application. The inventor had already gotten around 35 patents pro se. But
That said, if you can do it - it will save alot of money. Also, you will have the satisfaction of crafting your patent. However, no offense, but I gather from your post that you would be better off having some help. The many other posts mentioning the difficulty of the language, the strategy in the claims, the writing style, and so on are correct - it is an arcane profession which takes time (years) to learn satisfactorily.
Regarding the prices you quoted - $450 for a search and up to $6,000 for the application (finished and filed, I assume) - these seem on point, even rather low by the standards I am familiar with.
I would suggest you try and see the quality of the work of the lawyers you checked with - go to the USPTO full text patent search page and enter the query "lrep/xxx" where xxx is the attorney's firm name or personal name. You have to play around, especially with personal names. For example, if the attorney is named Joe P. Waller, the patent will list him as "Waller; Joe P." (with the ";"), but the "P" might be left out or he might use Joseph, etc. Find a patent or two and read them for technological competency, claim completeness, etc.
As a start, a search is good to ensure that your invention was not already patented. If your invention was already patented - then you will save alot of money and time which would be lost otherwise. Furthermore, you can learn to do your own searching. I worked for a searhing firm for a while. They took all kinds of people (with degrees, without degrees, etc.) and had them producing searches for paying clients by the second or third day. I did see alot of shenanigans going on - but you get the idea that searching isn't too difficult to pick up.
Somewhat offtopic - the USPTO has a large public search room in Crystal City, VA (near the pentagon, somewhat). If your work is such that you will be patenting things now and again, then the search room is worth a visit just to see it. It has 100s of feet of narrow (3') corridors lined on each side floor to ceiling with metal bins holding paper patent copies. It is a strange sight - and one which is soon to disapear as the USPTO is trying to destroy the paper copies and go completely electronic. I believe the EFF or ACLU has filed a suit against the USPTO asking for an injunction that the patents not be destroyed until the electronic search engine is working better.
I remember seeing something about open software patenting in old Slashdot posts - someone offered to provide services in searching and writing - maybe two or three years ago? I emailed the poster at the time and offered my services, but never heard back. I am curious whether Slashdot reading practitioners would be willing to help out. Too bad we couldn't have open source patent drafting - working together to protect open source inventions. But for reasons relating to competition and confidentiality, this wouldn't work.
Good luck, let us know what you decide.
I guess it depends on what he's planning to do with the patent once he files and presumably is granted one. If he's just going to sit on it and somebody contacts him with a pretty decent reason why is patent violates their prior patent, he'll just drop his patent and that should be the end of it. If however he gets his patent and the next day starts cranking out and selling whatever he has patented (assuming the patent is something produceable and saleable), if another company takes offense to this on patent infringement grounds, he's going to be taken to court to recover perceived losses from the sales. Legal and court costs too, possibly, in either case (in the first case he might be sued to pay for the laywers time researching his patent and forming an opinion). In the case of an overbroad patent challange the same conditions apply; he can be taken to court and either stripped of his patent, damaged punatively, hit for costs, etc, depending on what injury is charged by the plantiff. Underbroad is probably his best hypothetical case where his patent claim is weakened by an omission but not actually violating anything. Guess the point I was trying to make was that it might be worth having a patent lawyer give his claim a once over to forcast any potential problems in the future (to the extent that this kind of thing can be predicted), rather than just 'screwing it' and going it on his own. Anybodies mileage may vary, of course, and if the repliers patents have flown well without any legal advice then great, but getting a second opinion never hurts. Or I just don't know what I'm talking about.
"These people look deep within my soul and assign me a number based on the order in which I joined" --Homer re:
On the other hand, it probably took me a couple hundred of hours to do the research. By the time I was done, I'd spent enough evenings in the courthouse law library that some of the security guards thought that I was a lawyer.
A lot of the time I spent was understanding the basic rules of court. Now that I have a reasonable understanding of that, I'd be willing to go into court again, if I had to, but it's definitely easier to hire a lawyer to do things, if you have the money.
On the other hand, having watched lawyers in action (and lawyers who apparently had a really good reputation in lawyer circles!), you'd be surprised how limited their logic facilities can seem to be sometimes. Even if you hire lawyers, it wouldn't hurt you to do a quick sanity check on their work.
You're hiring them, and they're nominally acting under your instructions. Don't be afraid to ask questions and make requests. It can save you money and trouble down the road
(btw: Legalese is essentially a natural-language programming language)
Free Software: Like love, it grows best when given away.
File as quickly as possible. Do as much of it yourself as you feel comfortable, then turn it over to an attorney to submit. Once submitted, I believe you can claim "Patent Pending" status. This helps you in four important ways.
1) The VC types that you show it to can't easily steal your idea
2) They can expect that your new business will have some measure of patent protection, so it's worth more
3) Ideas you describe have less value than patents, since patents have legal standing as commercial property--this will help you negotiate your cut of the new business
4) If you get funded, you can draw on their resources to refine your application, respond to office actions, etc. Basically, you can save some of your expenses until after you've got more resources.
Good luck!
--dan
This posting is provided "AS IS" with no warranties, and confers no rights.
Just take a copy to a notary and have the damned thing notarized. All this talk of mailing stuff to yourself is silly. It makes for interesting evidence, but it's hardly a legal principle on which to base the security of your work. How many ways are there to slip something into a 'sealed' envelope? What if it's David Copperfield, wanting to patent a new type of sword-through-girl-in-box stunt?
Evil is the money of root.
What I would do and have done is to do my homework very thoroughly. Repeat your prior art search with wellthought out searches. Be very careful that you cover all relevant technical terms and beware that the terms used in patent documents can be very different from the terms used by people in your field. Write down the reasoning behind your searches on paper so that you and a patent attorney or examiner can understand that what you have done is correct. Put the time and effort into understanding patent classification systems. They are complicated but will help your search greatly. Identify aspects of your invention and classify them and search with terms and classes "diagonally", i.e. if your invention pertains to a razor mounted on a bicycle then search in the razor classes with the word bicycle and the other way around. Do this in both the USPTO and EPO systems (Espacenet).
Then you will end up with a pile of print-outs of patents that might or might not be relevant. Go through them one by one making sure that you understand them. For two reasons: Firstly, to find out if your invention is really new and what you actually invented. Secondly, because these patents are a good source of inspiration. You will discover new aspects of your invention that you will want to cover in your claims. You will also find out that there are patents that cannot be understood - period. I don't know what to do about them. Write a complete document to yourself and any patent people explaining why each of the existing patents are not in conflict with your invention. Remember to check in INPADOC what the status of the patents are if possible. Consider what discontinued applications can mean for your invention.
Now you have ammonition. Write up a set of draft claims modelled on the best and broadest of the patents you have read. Make sure that you realize that formulating claims is work for experts.
Write a detailed description of your invention covering every aspect that you can think of and that you have touched upon in your draft claims. Make the best drawings and the clearest text you can at all.
Clear your head for a week. Reread the text you have compiled and start negociating prices with patent people. Show them that you have done a lot of the tedious work for them and make sure that you get a significant discount.
I learned that just having the searches and then relevant patents printed out saved me a bundle. The attorney used Derwent to print out patents and that cost a part from time also $5 a patent. I had printed out the patents from the web for free from USPTO and Espacenet (+JPO). I cannot overemphasize the importance of doing a systematic search and documenting it. I decided to redo several days of work in a systematic fashion and got much more convincing results. Checking the references and examined documents in other patents is also very effective.
You can do a good job yourself but I would never trust myself to write the final claims myself.
virve
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