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Should I Publish Or Patent?
BorgeStrand writes 'Patenting is an expensive process, even coming up with some sort of proof that your idea is unique (and thereby try to attract financing) may be prohibitive for the lone inventor. So what do you folks out there do when you come up with a good idea but don't have the means to patent it or market it to someone who will pay for the patenting process? And how much sense does it really make for the lone inventor to patent something? Would it make more sense to publish the whole idea, and make it (and my inventive brainpower) up for grabs? If my ideas are indeed valuable, what is the best way to gain anything from them without investing too much financially? What is your experience?'
This is slashdot, all patents are evil, and the most profitable thing for you to do would be to to let everyone know the details, and let them all build whatever it is you invented. That way, it gets worked on by different people in an open source way and you get a better ultimate product. And somehow you profit from that. I'm still trying to figure out that last part, but if a million slashdotters say something it can't be wrong.
Simply tell me what your patentable idea is and I'll take care of everything for you.
If you patent, it'll be expensive.
If you don't patent, but end up making it, someone else will patent it and sue you, that will be more expensive.
However, if it'll never really be marketable, publish, someone might think oooo nifty, and hire you because it sounds great.
Blah blah sig blah blah blah irony blah blah
Oh quit the moral bullshit, people need to eat too and rent isn't free.
If you live in the US, you can do both. First send in a provisional patent to the USPTO using their electronic filing system (costs $110), then publish your idea. You have a year to decide to patent the idea or not, and if you decide not to, all you are out is $110.
I believe the only unavoidable cost of getting a patent is the filing fee (and the issuing fee, if it's accepted), but that only amounts to a few hundred dollars. There are maintenance fees every few years, and while these are a bit more expensive, it's not an insurmountable expense. All the prior work research and everything can be done by an individual, assuming they're determined and resourceful, although depending on the nature of the patent that could get real tricky.
What you should really ask is, "What's the purpose of getting this patent?" Having a patent doesn't automatically protect you from people stealing the idea, or ensure that you'll be duly compensated if someone decides to use it. The most onerous part of the patenting and licensing process comes after you get the patent - patent battles can go on for years or decades, and there's no guarantee that you'll win any compensation after almost unavoidably spending a ton of money to fight the good fight, often against people with far more resources than yourself.
If you think you can really do something with your invention and are willing to take on the entirely separate and probably even more difficult task of marketing the invention to a company and getting them to distribute it or license it, then a patent is probably something to seriously consider. If you want to patent it because it's your idea and you're proud of it, but you don't necessarily see yourself pursuing it in a commercial sense, then in my opinion you're probably better off just publishing it and taking satisfaction in the fact that you're contributing to the knowledge base.
The sum of the standard responses will be:
1) Develop the thing on your own. If you can't prototype it you don't have anything of interest to the folks you want to sell to.
2) Get a provisional patent - they're cheap and should protect you while trying to pimp your prototype.
3) There is NO market for pure ideas - if that's all you've got, nobody cares enough to pay you for that. Bringing something to market is far-far harder than coming up with an idea.
Being a person whose has ideas and these same questions for a long time, I can say I agree with all the above.
If it's possible for slashdot to agree on anything, it's this. Oh, and you'll get the "patents are evil" stuff too, but that doesn't actually answer your question.
Don't expect that you'll make money if you patent an idea-- the patent is only the first step in the process of commercializing the invention, and unless you are active and get your invention out in the world, it won't happen-- it's not true that there are people sitting there and reading every patent as it comes out, saying "oh, there's one I can invest in! I'll pay that guy buckets of money!" You have to do the work (and only ten percent of that work is technical. The majority is networking, social, legal, business, economic, and sales related.)
So: are you ready to do the entrepreneur thing? Long days of working on selling your invention to people with investment money, concatenated with long nights of working to make your invention work better, cheaper, and more reliably?
On the other hand, patenting needn't be terribly expensive if you do most of the grunt work yourself. The patent office has low fees for "small entities," which includes individual inventors.
If you publish, you won't profit directly (although if it's a nobel-prize winning invention, you will), but you will (in principle) prevent somebody else from patenting it. In practice, actually, the patent office is not very good at finding prior art in the literature (to be fair, they have roughly one day per invention to do both the literature search and also the write-up), so what you'll actually accomplish by publishing is to give other parties a piece of evidence that they can use to challenge the validity of the patent. (And, of course, the other parties who have the same idea will probably not have exactly the same idea, and the details of their patent will probably be slightly different, so not the entire patent will be invalidated.)
Disclaimer: IANAL (but, on the other hand, you can google Patent Claim Drafting... :)
http://www.geoffreylandis.com
If you patent, it'll be expensive. If you don't patent, but end up making it, someone else will patent it and sue you, that will be more expensive.
No to the second part-- if you publish before they file the patent, their patent filing won't help them, the patent is invalidated by prior art (=your publication).
In fact, if you keep good enough notes (signed and witnessed) to show your date of invention, and to show that you were diligent in working to bring the invention to workability (i.e., that you didn't just have the idea and abandon it), then they can't succeed in suing you, either, because you can prove you invented it first.
(However, if you had the idea, and didn't diligently work on reducing it to practive, you're out of luck. No cookies from the patent office to ideas that are abandoned and not reduced to practice.)
Disclaimer: IANAL
http://www.geoffreylandis.com
Ideas are a dime a dozen.
Implement something.
There is no sense in rewarding people for thinking up ideas. We simply don't need to, as good ideas will be thought out even if we don't.
The problem is finding people who would implement those ideas.
IANAPL but...
If you patent, it'll be expensive.
If you don't patent, but end up making it, someone else will patent it and sue you, that will be more expensive.
No to the second part-- if you publish before they file the patent, their patent filing won't help them, the patent is invalidated by prior art (=your publication).
That is the theory and, in some countries, patent examiners will look through reputable journals etc when looking for prior art but, in my experience, US examiners only look in existing US patents (and patent applications). Once a patent is granted it sounds like it is very difficult - in the US at least - to get it overturned.
The question is also where do you publish? If you can't get it into a journal, AFAIU one possible option might be just to file it as a patent and then abandon it before the really expensive charges occur. It should then, (again AFAIU), end up in the public domain.
The following assumes this is a hardware patent you have in mind.
The days of patenting for the lone inventor are over, seriously. And what if you do patent it? You'll end up spend the bulk of your time, brain power, and meager resources defending it. Unless you have the resources to hire a cadre of lawyers, you won't even be able to defend infringements. And we've not even discussed international patents... which still won't stop Chinese knockoffs (at least not for the foreseeable future).
For insights into why the patent process is seldom useful for individuals:
http://bit.ly/12x7EJ
http://bit.ly/3glVfj
There is a lot of money being made in the (e.g.) open-hardware arena: you make a gadget (brilliant idea or not), sell a couple hundred or thousand, make some money and move on to the next thing (see Arduino, Chumby, SeeedStudio, Adafruit, Sparkfun). These guys publish the specs of pretty much everything they make, with enough detail that anybody else could copy it. Yet they are rather successful for small (closely held) businesses.
So my advice is:
Step 1: make
Step 2: publish (gets you publicity for your gadget BTW)
Step 3: open up a store front and sell
Step 4: ??? (there is no step 4)
Step 5: Profit!!!
It's easy to get anything manufactured in small quantities these days. And by the time somebody bothers to clone your idea (which kind proves that you must have made money, in a backhanded compliment kind of way), the hope is you've made some cash, and can spend your time innovating on the next great thing.
This is the secret to happiness my friend.
If you patent, it'll be expensive.
In the US, you can apply for a provisional patent for $110. This is a simplified, essentially abstract patent application you can use to hold your place in the patent line while you go off and find someone to commercialize/help you commercialize your idea.
You've still got a year after publication to make a provisional filing, but you also get a year after the provisional filing before the full application.
Presumably, you would be patenting as a small entity, for which the US PTO cuts most fees by 50%.
You also don't necessarily need an expensive attorney to file a US patent application - you can do it yourself, provided you conform to certain formal requirements. For an application which goes smoothly through the process, the small entity fees are less than $2000 http://www.uspto.gov/web/offices/ac/qs/ope/fee2009september15.htm. If there are many office actions, this total could easily double or triple, however, so preparing the application carefully is essential. I'd recommend you peruse the documents at http://www.uspto.gov/patents/basics/index.html, and get a copy of 37CFR part 1 (patent rules) and the MPEP http://www.uspto.gov/patents/law/index.jsp.
FWIW, I've had a couple of patents which issued without any intervening office actions, but they were the exceptions. Most involved a few office actions, and a couple involved many office actions. Every office action involves a fee, even if the action was due to the PTO losing papers which they had officially acknowledged receiving (that case is still ongoing).
Also, publishing in some journal or on the web does not necessarily prevent someone else from filing a patent application on much the same thing. The US PTO does not and cannot search ALL possible publications when looking for prior art, and if a patent is wrongly issued, it would be up to you to challenge it in court (at much higher expense than actually getting a patent)). The PTO does search all US patents and US patent applications, however. So filing a patent application, and then abandoning it at the first office action, is a good and relatively cheap way of publishing your idea in a way that prevents everyone else from getting a patent on it. They'd have to make significant changes beyond anything clearly contemplated in your application to get their application through the PTO.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
I'm going to get flamed by the usual losers for this, but anyway...
I hold three software patents. One was sold as part of a deal that made me several million dollars back in the 1980s. One made me $600,000 in licensing fees. I'm pursuing an infringement claim against DoD on the third. I also have another patent pending. I put "Inventor" on my tax return.
Each of these patents was an early patent in an area where previous attempts to solve the problem had failed. In each case, the patented technology came with a working application or a successful demo. So these weren't just "ideas", they were ideas that worked. That's when patents are worthwhile - you've solved a hard problem, you're not with a big enough company to exploit it, and doing a startup doesn't seem to be the right answer.
The key point here is that a patent plus a demo version is more valuable than either alone.
This history isn't all that unusual here in Silicon Valley.