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How To Survive a Patent Challenge?
An anonymous reader writes "I have written a nifty application that helps me run my own business, and could really help in running almost any business. It has been abstracted well enough that it could very plausibly be made a sale-able product. There are several very good, possibly patentable ideas within it. However, they are overshadowed by virtually an infinite number of possible bs challenges to its more mundane parts. I'm rather fearful of bringing this to market for that reason, and so far have only deployed it as a 'consulting' project with two other small companies (who love it). Does anyone have suggestions about how to proceed?" Other than a generic "hire a lawyer!", are there practical steps a software author can do here?
That saiod, document it's inventor dates, and copies of original information and maikl them to your self.
Of course, it it is something already patent, then there is nothing you can do and you are already in violation.
Look into doing a patent search.
The Kruger Dunning explains most post on
and you know this because...?
Just kidding. Everyone knows he's hung like a hamster.
Think about Patent Infringement Insurance / Intellectual Property Insurance
Hopefully your idea will be good enough that, if you get challenged, you will have made enough money to fight back.
Best of luck to you, and keep in mind that risk is at the foundation of business!
Hire a lawyer.
Though as a rule of thumb if you're worried about the cost of hiring a lawyer, then your software probably isn't going to run afoul of any patent trolls.
Patent trolls generally don't sue people with no money.
It breaks my pluginses, my precious!
As well as not disclosing the source code, consider the code a trade secret. You know the highly vaunted 'protecting your valuable intellectual property". If the corporate scum can claim this why not the rest of us? Perhaps even a NDA for your customers to keep secret anything they may discover about your code? Of course, IANAL.
It's half sarcastic, but I've heard more than one person say they don't do patent searches, because willful violation is treble damages. Might be better not to know.
And no, I'm not a lawyer.
Unless you're stepping on someone's toes (muscling in on an existing market) nobody's going to notice or care. It doesn't sound like your little vertical application is going to be seen as a threat by Microsoft or Google, and I'm guessing not even Intuit. So go for it, milk it for all it's worth -- which, most likely, is not much.
Do you really need to patent the software to sell a good product nowadays?
It's 11pm, do you know what your deamons are up to?
If you don't bring this to a patent attorney within a year of your first deployment (assuming that you haven't made major changes to what you think are the patentable aspects), your question may soon be moot.
"A person shall be entitled to a patent unless... the invention was... in public use or on sale in this country[] more than one year prior to the date of the application for patent in the United States." 35 USC 102(b)
Isn't it great to see how software patents can encourage innovation? (And by encourage, I mean scare away.) What could be a better example of how broken the system has become?
It sounds like you're confident that the core of the product is novel and not already patented. So the issue is accidentally stepping on a bunch of overly broad patents for stupid things? Unfortunately, the crux of the patent mess is precisely that: it stifles innovation because there is no good way to know you're not stepping on a bunch of stupid, overly broad patents, that will take a lot of money to litigate even if they turn out to be invalid.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
So far, software patents are still not enforcible in EUrope. And the EU economy is bigger and doing better than the US.
extern warranty;
main()
{
(void)warranty;
}
Seriously...write something up and send it to one of the anti-patent groups involved in the Bilski stuff. Worst that can happen is that they ignore it.
The only change I can believe in is what I find in my couch cushions.
Start learning to read and understand patent claims and the differences in patent classes and subclasses. Hiring a lawyer to do it well will cost you more than you can afford AND you won't really know how thorough he was in his patent searching and analysis (or whether he just hired a portion of it out, which is common).
Searching & Reading is all free at www.uspto.gov
Various places & publications talk about hows and whys. The USPTO wording or language needs to be understood not unlike any jargon.
If existing patents "read" right on top of your idea "claims", then the chances of getting issuance are almost nill.
Even if you can patent it, there remains a question if you can actually get substantial income from it and that is the biz game.
It might help however, to know a bit more about the law yourself if you have the time. At least, read the news about it. Some things - like business processes - can't be patented in some countries. Google "in re Bilski" for some good threads.
Do not mock my vision of impractical footwear
Incorporate to protect your existing business and personal assets. Then just start the software company. It is unlikely anyone will sue until you have enough assets to make it worth the effort, and most likely you'll never get to that point. Another option is to open source the software and sell support and consulting contracts. If anyone sues, you can claim the software doesn't generate any revenue and thus no damages. Of course it won't keep you from getting dragged into court anyway. Plus, since I'm not a lawyer, if you follow my advice you are screwed anyway. Nobody has ever gotten rich without taking some risks, and in my opinion, the risk of a patent troll taking interest in you is small enough to just do it.
>>> How To Survive a Patent Challenge?
... see if you can get them to end up paying you
threaten a countersuit
Get the Nolo book about how to form an LLC. Read it. Form the LLC. Transfer ownership of the application to the LLC and make sure this is unambiguous. Then have the LLC sell your software. Be sure to use the LLC in a clear and unambiguous fashion. Distribute profits to the members immediately upon receiving them. If a big awful patent challenge occurs and you can't afford to oppose the bad guy, then you can have the LLC declare bankruptcy and the big awful patent owner can't pursue the profits that you have already distributed to the members. Also, lobby your senators and representatives for software patent reform, assuming you live in the US.
A company isn't going to sue you over patent infringement unless you have something worthwhile to take (IE, lots of profits). If/when that day comes, you should have by then saved up enough money to hire a decent lawyer to deal with those issues for you.
"There are several very good, possibly patentable ideas within it"
BZZZT!!!! And thank you for playing. Here's your lovely parting gift. Yes, the USPTO has gone insane, but you're not supposed to be able to patent an idea.
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
Not to worry. Nobody else does.
In the very unlikely event it happens:
If you do get challenged, all you have to do is know how to play the game.
There are probably a dozen ways to invalidate any patent. Prior art. Usage in interstate commerce
more than a year before patenting. Obviousness. Uselessness.
Just have your lawyer send their lawyer a letter stating that you've looked over their patent and there are 343 possible grounds for challenging the validity of their patent, so how's about we just "cross-license" our "intellectual property" and fugeddaboutit?
This may be sacrilegious in this crowd, but fear of patent suits is one of the major (perhaps *the* major) reasons that many companies don't open source more software. Device drivers are one of the most common areas where this problem crops up: if they open sourced their drivers, others would have lots of material to base a patent suit on. What others don't know about, they can't sue about. It sucks, but the system is what it is.
Truthfully, if you want to run run a business, the secret is rather simple. 1. Work hard. 2. Be flexible, 3. find and hire great employees.
The patent only comes into play AFTER you have proven yourself a success and other people start copying you. If you can, hide your success. That will do more to protect your business model than anything else.
excitingthingstodo.blogspot.com
Look, 2 people "really like" the product.
You don't even know if it will be saleable. See, this is the thing that annoys the crap out of me. Right now, your product has zero value, because you have not started to sell it as yet. Absolutely zero.
Sell the darned thing first, see if people like it, if they do, then at least you have some stake in the marketplace and in any proceedings. You would have had the product out there, people may buy it, and you will have first mover advantage.
Right now, all you have is the possibility that someone "may" sue you, and thats just in your fevered imagination. Get coding boyo!
Newsfollow.com
Be rich enough to survive a lawsuit long enough to prevail in court.
And by free I mean "without software patents". Then when you have made some money, you can still sell to non-free countries, because you can 1. actually pay that lawyer, 2. have prior art on your side.
Any sufficiently advanced intelligence is indistinguishable from stupidity.
the thugs hired by Cheney et al.
Yours In Vladivostok,
Kilgore Trout
Have you tried reading a patent? It's complete gobbledygook. On purpose, so that they can confuse a jury and stretch their claims to anything they can vaguely relate to. Anyway, even in my field of expertise, I have absolutely no idea what the patents say. No fucking idea. So trying to read them is a complete waste of time anyway.
You never get "caught" infringing patents, esp. software patents. Well at least, you don't get "caught" if you show you didn't know about the patent, as in, you don't get punitive damages, or at least you don't get assraped half as hard. Hence the policy, I believe it's indeed verbotten to discuss patents on linux-kernel IIRC.
Step 1. Build time machaine
Step 2. Go back 50 years
Step 3. Mail yourself a registered letter explaining the idea in great detail.
In the case Bilski v. Doll, the Supreme Court is reviewing the patentability of software for the first time since 1981. This is a very rare chance to fix things, and you're exactly the type of case they want to hear.
For the most part, briefs are being submitted by the mega corporations and the groups of patent lawyers. Ordinary programmers and small businesses are not participating, and they're exactly the groups that are bearing the costs and restrictions of software patents.
Please help spread the word. I'll be sending out more info about this in the coming days via the EndSoftwarePatents mailing list.
Please help publicise swpat.org - the software patents wiki
So, I was in a similar situation with a mobile app recently. There weresome novel components and some components that most likely infringed on existing patents.
To help put my mind at ease, I spent some time with (and money on) a lawyer. It was worth every cent. We talked about different components that could be patented, he did a prior art search, and we discussed how to handle any claims brought up by holders of related patents. At every step, I gained a much better insight into the realities of patent law and dispelled many myths and prejudices gained over the years from slashdot. Based on the results of this interaction, I decided not to pursue a patent at this point and I feel much more comfortable about my app's relationship to existing patents.
If you choose to do it, make sure to go in prepared:
1) Have a good written description (with screenshots) of your application prepared that highlights the novel components and those parts that may be covered by existing patents.
2) Have a list of similar apps
3) Have a timeline of any public presentations/publications you've made of your app.
4) Understand your business model and have at least a 2 page executive summary of your business plan prepared
(1) and (2) will save you time/money with the lawyer. They'll need this information to help with patent searchers and to develop claims. The more work you've done ahead of time, the less you'll pay a lawyer to do. Don't worry about trying to write claims, just get a good english description of things. (3) matters for patents. In the US, you have a year after publication/release to file. Overseas, you can't file after publication/release.
(4) will help you decide how much money to spend on the process. If youre (realistic) business model only shows you generating $10k over the lifetime of your product, it's probably not worth spending any time with a laywer. The amount of revenues you project will help determine how much IP protection you're willing to pursue (i.e., pay for :) ). Just for some numbers, a patent will run you $10-20k up to the initial filing. The early search, however, will cost less than $5k (in my case around $1500). If you're serious about the business, the cost of the search shouldn't bother you.
Anyway, I hope this is a more useful "hire a lawyer post"...
-Chris
nuff said
You are not the first person to create that algorithm. Someone has already developed it, probably on a PDP back in the day. Even if you did, it was built on the unpatented work of thousands of others.
You're looking for copyright, as in protecting your particular implementation and not your "original" concept. Seriously, you thought you'd cruise into Slashdot and find a lot of pro-software-patent types?
Dewey, what part of this looks like authorities should be involved?
Congrats on quoting trolls and getting modded down. You sir are a fucking retard.
The best advice. Protect your own ass and start selling. Worry about the patents when you've proven the software has value.
"Other than a generic "hire a lawyer!", are there practical steps a software author can do here?"
HIRE A FUCKING LAWYER. Why on earth is it that people keep asking these questions when they know full well that no one here is a lawyer and half the posts are signed with "IANAL"? They have lawyers for a reason, that reason is to give you legal representation in matters involving the interpretation of the LAW. You need a lawyer, not a bunch of people on the interwebs claiming that "they've seen such and such a technique work", "long ago", and "once when my friend got sued by this one guy".
Are you really willing to risk your patents based on some advice you got off of the internet from someone whose name you don't know whose credentials you don't have and probably don't actually exist? If so, then by all means keep asking legal questions on a tech website. But your post makes it seem like you actually want credible legal advice, so stop asking slashdot and GO HIRE A LAWYER.
-1 disagree is not a modifier for a reason. -1 troll, flaimbait, redundant, overrated are NOT acceptable substitutes.
Are you ready to spend $1,000,000 to get the patent AND enforce it? If not forget the patent. If it sells and is really really great then someone may duplicate it and if they have more capital then they will bury you without a patent but that is a whole bunch of ifs and mays.
Are you able to tell us what your application does? I'm afraid I still can't solve you problem, I just ask out of personal interest, since it's apparently nifty and all. :-) Mabye it's even something I would like to buy from you!
Swedish plasma phys. PhD student; MSc EE; knows maths, programming, electronics; finance interest; seeks opportunities
Sir, I regret to inform you that I already have a software patent on nifty applications that help run personal businesses and those that may be used to help run almost any business. You should look elsewhere for idea inspirations. Please note that I also hold patents on items that are useful around the house, training routines that make your dog less of a jerk and design patents on expensive machines that go "bing!"
Patents aren't necessarily the worst problem ahead for the poster. Another, potentially bigger problem he may encounter is that (depending on his contractual relationship with his current "clients") he may not own the software - they may claim that it was a work for hire. There position will be that the software was created for them and they are the "owners". In that case he doesn't just have to worry about the trolls he doesn't know...but also about the ones that have already paid him. Not all work created by independent contractors are "works for hire", though, so he may not run afoul of this issue.
...Apparently knowing about the patents you infringe upon makes your situation worse. So apparently you are better off not looking at existing patents...
It depends. The law has changed recently so old advice (e.g. above quote) may not be relevant anymore. But the law (as now changed) may not persist which is why old advice (e.g. above quote) may be the conservative approach. Yep. the first practical step is:
1. Hire a (good) lawyer
2. Pursue as many patents as you can based on available money and merit. Get them filed. ASAP. Don't disclose anything (more than you already have) until you do.
Problem w/ the money part? Get an investor. You can sell equity, or an interest in the consulting revenue stream, or an interest in just the patents ... sell enough to get the patents filed (and prosecuted to issuance). Got five patents you want to pursue? Need 50k? What are you offering?
Problem w/ the merit part? Here is a quick hack for a filter to find merit: Assume for a moment that nobody could ever reverse engineer what you are making/using/selling ... then ask yourself what part(s) of your product would you most want to keep secret (as trade secrets) so that you could continue to be successful in out-competing all the other competing products. Consider filing for patent protection for these meritorious parts.
3. Replace anything your read on Slashdot, including this, with what your lawyer advises.
BUY THIS BOOK. It's written by a patent attorney for problems like yours. You can get it from http://www.nolo.com/ It cannot not give you all the answers. But, you will have a better understanding if you do need to talk to a patent attorney. The author does mention that a patent lawsuit costs 1-3 million dollars.
Unless you know for a fact that you are infringing one or more patents just go ahead and put your product on the market. If someone thinks you are infringing and are worth bothering with they will contact you. There are no criminal penalties or statutory damages for patent infringement.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
Of course, speak to a lawyer - but, as someone who works daily on patent applications, I would point out that sale of the patentable material or use by a third party undermines your claims. You have, as I recall, 1 year from the date of disclosure or sale to file, according to the USPTO.
Other than a generic "hire a lawyer!", are there practical steps a software author can do here?
Hire a GOOD lawyer and do it QUICK. It may already too late because in the US you have one year to file a patent after you offer it commercially. After that one year their is statutory bar to ever getting a patent on the invention.
You may already be too late in which case there is nothing that can be done.
When did you sell this invention to consultants? Did they actually use the invention?
If the answer is more than one year ago, then technically you are cannot receive a patent.
Also you have a duty of candor to reveal any sales prior to one year to the Office.
I have talked to lawyers about this, and they generally tell you to not worry about patents at the beginning. Basically this is because they'll only sue you because either they want money or they want to shut you down. You don't have enough money to be worth sueing. You also probably aren't taking away enough of anyone's business for them to both with the cost and distraction of launching a lawsuit. What I was told was basically, if I got sued, that meant I was successful because I had enough money to be worth sueing.
However, you should always consult a good intellectual property lawyer.
Some other interesting "facts" - getting a patent generally costs about $15,000. The average return on investment of a patent is (can't quite remember, but) somewhere around $7000 or $9000. Most software companies get them for defensive rather than offensive purposes. The average patent litigation suit in the US is around $1 million. Getting one patent is kind of like being a country and getting one nuclear weapon.
Also, I found this article from Paul Graham insightful.
"I have never let my schooling interfere with my education." - Mark Twain
You have a year from first sale to get a patent filed from what I was told. I'm not however sure how this relates if you had your clients sign a contract regarding your work or something.
Look, I've filed two patents...both had software and hardware components. It was a complete waste of my time. You can expect your first round to get rejected outright...and your second round might take years. What is the point? You will waste about 1k if you do it yourself and way more if you have a lawyer do it. What I learned from filing my patents became very valuable to me...but their IP value is ZERO. Granted one is still pending but my product has changed so much since that filing...it's basically useless to continue with it.
You can expect your patent to sit around waiting in the PTO for 1-5 years...where will the industry be by then? You know what happens though don't you? The second it gets published or the second your product reaches the doorstep of another company...they clone your product and add some new features you didn't think of and then throw a crap load at marketing. What about your pending patents? Well while they are pending those companies will tell you to come back when they are issued...if they are issued. Between the moment they first sell a clone of your product to the moment you have a lawyer send them a nasty lawyer...they keep all of those profits. Only after they have been notified will you get a chance at their profits and only after you have been issued a patent...and only after you have won a very very long drawn out court case that you're not likely to have the money for.
Patents are for the big boys...you're wasting your time if you're thinking like them. Think small...agile...mobile...they can't compete with that. I know you put a shit load of work into your products as we all do...but the bottom line is they have way more resources than you or I ever will. You DON'T COMPETE WITH THAT. You avoid butting heads. You work around their patents...not try and force feed them yours....you will always loose...and if by some odd chance you win...think about all the time you wasted and how much more value it would have had if you devoted it to idea number 58392 instead of idea 1. It's not worth it, the system is broken...don't believe me? Then file away...and the day you prevent another company from stealing your idea through "patent pending" on your product...is the day I'll eat tofu...yeah tofu.
Move to a country without software patents, host and sell the software from a country without software patents, and have an EULA that assigns any patent liability to your customers.
Otherwise, you might as well just suck it up and realise that lawyers fees are going to be one of your expenses.
If you produce any product at all, you are at risk for patent violation lawsuits.
That is part of what sucks so bad about the current state of the patent system.
So, any pointers or links to a "how-to" guide for writing briefs? I own a small software consulting service, would love to participate, but really don't have the time to do extensive study on how to file my comments. Even a template would be OK, as I can easily modify one to suit my needs.
The lawyer will just tell you that the only way to avoid being sued is to not sell the product. Lawyers are great at "no".
According to Paul Graham, software startups don't need to worry about patents:
We tell the startups we fund not to worry about infringing patents, because startups rarely get sued for patent infringement. There are only two reasons someone might sue you: for money, or to prevent you from competing with them. Startups are too poor to be worth suing for money. And in practice they don't seem to get sued much by competitors, either. They don't get sued by other startups because (a) patent suits are an expensive distraction, and (b) since the other startups are as young as they are, their patents probably haven't issued yet. [3] Nor do startups, at least in the software business, seem to get sued much by established competitors. Despite all the patents Microsoft holds, I don't know of an instance where they sued a startup for patent infringement. Companies like Microsoft and Oracle don't win by winning lawsuits. That's too uncertain. They win by locking competitors out of their sales channels. If you do manage to threaten them, they're more likely to buy you than sue you.
If you think you have a good product, start working in getting it to market. If you get to a point where you're successful enough to be sued for patent infringment, you will have enough resources by then to deal with that situation.
By the way, Paul Graham has many interesting essays about software startups
Okay, here's the skinny. If you're writing software, you're violating somebody's patents. Sorry, no way around it. So, what do you do?
1. Incorporate so that you are not personally bankruptable
2. Never, EVER visit patent web sites (damages automatically triple with wilfull infringement)
3. Don't explain how you do anything, just what you do
4. Cross your fingers
5. Profit! (draw money from the corporation before it gets sued)
Do daemons dream of electric sleep()?
Stop looking at patents. Just make your product and sell it. If it's not successful, none of the major players/patent holders will likely care to bother you. If it is successful, then congratulations! If a patent issue comes up either negotiate a license agreement (small % of your sales), or hire a lawyer to invalidate. Only then you should start looking like mad for prior art references... which are probably out there for most everything anyway
... at least that was the advice I was given once by a friend of mine in a similar situation. Basically, what he told me is this: No company will ever come after you if you are not making good money. It is just too much of a hassle for them to come after every little fish in the pond. Whenever and if they ever come after you, your company will be worth of their time. By then, you will already have a solid business and you will most likely be making pretty good money. At that point, you hire the lawyer and you settle/challenge the disputes.
Patents (in the US, at least) don't need to be actively defended in order to stay valid. Trademarks, on the other hand, must be.
You're right that trademarks have stronger use-it-or-lose-it rules than copyrights or patents. But if you don't defend your copyright or patent, and you try to defend it later, you can still run into laches, acquiescence, or other estoppels if you're not careful.
Sell it as a service and hire a lawyer to do the contracts. Once the business is sufficiently up giving you some capital to play with, start considering patenting the key ideas. At this point, the product is no longer the same product you had at the beginning, but an altered one, transformed to serve an even larger set of customers.
A company isn't going to sue you over patent infringement unless you have something worthwhile to take (IE, lots of profits).
Capitol Records successfully sued an individual for over a million dollars for petty copyright infringement.[1] What makes your assertion true of patents and not of copyrights?
[1] Petty meaning that the extent was nowhere near the extent of the infringement investigated in Operation Fastlink.
To get into a country without software patents, one would still have to hire an immigration expert.
How much does it cost to hire a lawyer, vs. how much does it cost to get into one of those countries?
The US could deal a serious if not fatal blow to patent abusers with 'loser pays' laws (particularly in the eastern district of Texas, a hotspot for patent trolls.) Fighting off a troll can easily cost a cool $million. And since trolls are often either lawyers or engage a lawyer on a contingency-fee basis, they have little to lose by suing anybody. They know you're likely to settle. But if they stood to lose what you stood to lose they'd think twice before filing anything but an ironclad suit. I think this would do wonders to clean up this mess.
Just my 2cents.
---Democracy is two wolves and a lamb voting on what to have for lunch.Liberty is a well armed lamb contesting the vote.
Rather than paying for a patent application, and going through the entire process, you can write up a description of your invention(s), and post them on ip.com.
Once published, you will have irrefutable prior art against a patent troll. (Assuming, of course, that you are not in violation of an existing patent.) Yes, it costs money, and no, I don't advocate them exclusively - you might be able to find another publisher that will do it for free. But defensive publication is valuable in cases where you don't foresee yourself suing others for patent violations.
The society for a thought-free internet welcomes you.
There is no way I would do or say anything to OP that would help him patent software. My personal opinion is that he is slime for even considering it.
"Send Lawyers Guns and Money, to get me out of this"
Any insufficiently advanced magic is indistinguishable from technology.
"and so far have only deployed it as a 'consulting' project with two other small companies"
By doing this, you have already forfeited your patent rights in most countries. In the United States, you have one year from the time of public disclosure or offer for sale to apply for a patent. BTW, I'm not a lawyer.
I would think about this as a potential product and business before you worry about patents. You're likely to make much more money that way. Patenting things may actually be a BAD idea because it could give away secrets that could give you a defensible (and very profitable) advantage.
I've been thinking about this, and the short answer's no :-/
Getting a brief ready is actually a lot of work and there are a lot of formalities. You'd need a lawyer, and you pretty much need a lawyer who's accepted at the Supreme Court bar.
So what I hope to do is to get a draft of the EndSoftwarePatents brief ready asap and call for third-parties to sign it. That way people who are against software patents can get their voice heard with very little effort, and the big effort from the ESP team can be shown to the Supreme Court not just as the opion of some self appointed experts, but also of businesses.
Hopefully you'll hear about this in the coming days. I'll put something on http://endsoftwarepatents.org/ (but hopefully Slashdot etc. will help spread the word).
Please help publicise swpat.org - the software patents wiki
Hire two lawyers!?
OT: I thought of a riddle: how many faces do two sh*t faced lawyers have if they're two-faced?
Get me a meat pie floater!
No.
That said, you are one of the many millions of people who have great ideas that will help many people and will make you a millionaire. There is however a huge difference between buying and liking a product. It could very well be that the product you have would raise interest and even our company would like it. That does absolutely mean nothing.
I first must make my own calculation if I can make money on it and if I can sell it to those who agree to part with their budget.
And then there is that fact that patenting software is silly and stupid and I hope by patenting it will bankrupt you in such a way that with your next idea you won't do it again.
Don't fight for your country, if your country does not fight for you.
Seriously, don't bother with the US Market. Europe is currently software-patent free, as is China and much of the oil-rich middle east. Other markets abound as well.
If you form an LLP or LLC as others suggested, you might consider incorporating in a European company and selling your product in markets where software patents do not exist.
In addition, as others have mentioned you should file an amicus brief for the Supreme court opposing software patents, write a letter (or better yet, lobby) your local representative to repeal software patents, and patent a few ideas of your own to use against anyone who comes after you.
As for open sourcing being a threat, that is probably the new meme Microsoft shills will begin spreading to try and undermine the underpinnings of the free software social contract ("share and share alike"), but it is highly debatable whether or not it actually increases risk. Microsoft didn't exactly open source word, or any of the numerous other products they sell that have been found to violate third party patents, so source code availability or secrecy doesn't appear to have any effect on your exposure to litigation one way or the other. But it makes a good soundbite, one I'm sure proprietary software vendors and monopolists are drooling over.
If you do open source your product, GPL v. 3 may offer you some of the litigation protection you need. IBM, Sun, and others have certainly felt it does ... your situation is different of course, and nothing will give you perfect protection from American litigiousness except to stay out of markets where software patents are considered valid. Luckilly that means you can sell your product in most of the world, and with America's economic decline and the ongoing, chronic weakness of the dollar, you might find yourself earning quite a bit more by casting your net further afield.
Best of luck, whatever you decide to do.
The Future of Human Evolution: Autonomy
If you have disclosed it (deployed it) more than a yaer before filing, you can not file.
Look, this is really really simple - and if you don't know the answer then you haven't the stones for running a software business.
Just. Fucking. Do. It.
Seriously. You have a good idea for your business. You've done the code. You have some trial accounts that love it, but you're too scared to do it in case you get sued for some patent? Now, maybe you know already that you infringe on something which changes the game a little, but assuming that you're as naive as you seem to be, and you are unaware (or havent looked) then just go for it.
If your software is as good as you seem to think it is, and could make as much money as you seem think it could, are you really going to piss that away on the slight chance that you might infringe an obsure patent, and they might find out, and possibly decide at some undetermined date to sue you ?
Jesus.H.Arse-raping Christ.
1) Form a company. This will protect your personal assets (and separation of those from the personal assets is always a good idea).
2) Take it to market.
3) ?????
4) Profit.
If at some future stage someone decides to contact you about a patent, you will have real information to base your decision on.
Alternatively, if the idea is good, give it to me and I will do it - and we can come to an arrangement on a royalty.
When he says "art" he means the list of "prior art", ie the list of previous disclosed methods, systems and apparatus that are considered pertinent to the application and have been revealed in the course of a patent search.
Under the USPTO you're required to divulge this information; this is not true in any other jurisdiction that I'm aware of (put I'm probably a little behind the times here).
It's worse - whilst in the US you're allowed a 1 year grace period to submit an application this is not true in Europe (and everywhere else, eg OAPI states) only in the US.
This means that as you've used the thing out in the open anyone in Europe can use that "invention" (assuming it's not encumbered by 3rd party patents).
The classic case on this is called "windsurfer" IIRC, it concerns the guy who developed [one of?] the first windsurfer and did field tests in public ... resulting in loss of patentability under the EPC.
You can think this through logically (though of course the law doesn't need to make sense!) - if I see a windsurf (say) being used and think "hey I could make those to sell" then check there are no pertinent patents to avoid, then start up a factory, ... I should be free and unencumbered from continuing. You applying for a patent 11 months later and closing my factory and then using the advantage of my market development would be seriously unfair.
It's taken nearly 10 years and more money then I'm going to disclose on /.
However, we now have the big stick to beat the people that copied our product into submission.
My suggestion above all else is this:
Don't just hire a lawyer, hire a GOOD lawyer. You don't say where you're based, so I can't give you any direct suggestions. We spent a boatload of money preparing our patent only to find out that the lawfirm (well regarded in the area) we hired to do it didn't have a clue WTF they were doing. They resulting patent was shit. We fought with the USPTO for 2 more years before finally deciding to retain alternate council. Once we hired a GOOD lawyer, we had it within 6 months.
So, don't just hire a lawyer, hire a good one.
One thing that's very helpful to remember is that when reading a patent the claims are what really matters, the rest just gives some context. There are two types of claims in a patent: dependent and independent.
A dependent claim is one that references another (e.g. A method of claim 4 using water as the cooling medium).
If you do not infringe on an independent claim, then you do not infringe on any claim that depends on it.
So, as a first pass go through and highlight all the independent claims, then read them and see which ones you might infringe on. If you don't do any of these, then you're done. If not, start looking through the dependent claims and see if you can make some minor change to avoid infringing.
You're being obtuse - your first sentence is pretty much a truism. The guy doesn't need someone with 20 years experience to tell him the basics of whether he has a patentable invention and if it's a priori going to be anticipated by prior art. Any patent agent could tell you - if you go to speak to the guy with 20 years of experience he'll likely hand it off either to a trained secretary, search professional or to the junior patent agent in his practice. But he'll charge you his fees for doing that.
The 20 years experience will come in handy most if you know your invention is anticipated or excluded but still want to get a patent and still want to defend it in court or frighten off the opposition by threatening to invalidate their patents.
I would write a book, and become a consultant, and profit.
But you should do what you love, and the money will follow.
If you love getting patents, go wild. But me thinks it is much different than you imagine. And, I do know quite a bit of what it involves. I know enough to know that I don't know everything, which is a sign of an expert.
Here is a little quiz: why must you be so cognizant 11 months later of the difference between "the" and "a" in a provisional patent submitted to the USPTO?
I am a patent examiner.
In the US in order to sit for the patent bar, you need to have a Bachelor of science (or higher) in science or engineering, or have passed portions of a state professional engineering exam.
Anyone can file for a patent in the US, but only a patent agent or attorney may work on behalf of an inventor in front of the USPTO. The same is true in courts of law here. Examiners will help inventors if they do not have representation, but the inventor may not get everything they are entitled to without representation. That is to say, they might receive a patent, but it may not be worth as much as it should be.
Bring back the old version of slashdot.
Anyone can file a re-exam. I am surprised that more people, when someone tries to bring an infringement case against them do not pay the couple thousand dollars to file a re-exam.
Bring back the old version of slashdot.
Move to China.
http://www.nolo.com/legal-encyclopedia/article-29493.html
( I'm a customer of theirs, not an "affiliate" :)
http://www.nolo.com/products/patent-law/index.html
http://www.nolo.com/products/representing-yourself/index.html
cheers.
( consider the Legal Research book, as well as the patent stuff )
Their books are excellent & informative, and they give one the ability to KNOW what the landscape is, instead of just blundering ignorantly.
I'm posting this anonymously to keep from obviously identifying what I'm legally not allowed to talk about.
When my small software company produced a unique application, my business partner insisted we patent what seemed to me the most basic, and obvious functionality of the application. I agreed, against what I thought was my better judgement, to what I considered a waste of money.
Seven years later, I am SO GLAD we did this.
1. A contract programmer we utilized, unhappy with the fact that his ego was not being stroked enough (i.e. we were not incorporating enough of his "innovations") took some of the code we paid him to write for us, and "anonymously" published a free application that had a great deal of the same functionality that our application had. Because he couldn't do it truly anonymously (he wanted the ego stroking of people telling him how wonderful he was), we easily traced it to him. When he realized that we were about to sue him for millions of dollars, he "conveniently" lost the source code for "his" app, and with it, our case that he had used the code we paid him to write, regardless of the non-compete he had signed. Instead, we went after him for patent violation, and ended up settling the case decidedly in our favor.
2. A VERY large corporation put out a product which almost duplicated ours in terms of functionality - and then actually tried to patent that functionality, despite the fact that we already held a patent on that exact functionality. They bluffed for a while, attempting to say theirs was different, they had prior art, all kinds of legal crap, but in the end relented, and signed a licensing agreement with us. They have a massive marketing organization, and a budget that was orders of magnitude of ours, so their product quickly eclipsed ours, and we ceased operations entirely. My company now operates as a shell, and its only function is to accept the ongoing licensing fees from the large corporation that licensed our patent.
This is software. Register the copyright on it, and you will be protected. Patents are for actual inventions, not ideas (then again, copyrights are not for ideas either, but for a specific expression of an idea.)
Do the right thing and refrain from assisting in the continuous misuse of imaginary property laws by not attempting to patent your software.
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Alot of echoing is an insult from bulldykes towards cavernous/stretched lipstick lesbians, so that must mean the retard that echo'd that trolls post is a bulldyke mocking the OP/lipstick lesbian.
>>>Congrats on quoting trolls and getting modded down. You sir are a fucking retard.
>>Congrats on quoting trolls and getting modded down. You sir are a fucking retard.
>Congrats on quoting trolls and getting modded down. You sir are a fucking retard.
Or maybe the Matrix changed somthing and it's a trap (for which 7chan and 711chan prepared me all too well).