When I did write patents the lawyers were telling us:
- Everything is patentable, it is the enforcing part that is hard (i.e. remember the computer mouse)
- Patents are only valid if you have money to enforce them.
And then I heard from some start-up about another:
- What are they offering?, they don't even have IP. Nobody is going to buy them...
I got to the conclusion that they are more than any other thing a way to demonstrate value for small companies and a tool for big companies to delay competition from new entrants. I haven't understood yet how patent offices take care of the prior art...
I patented a thing while I was at university - there was some prior art but I'd come up with a neat solution (literally as well as figuratively) that actually worked - got as far as building a few prototypes.
I had a degree to finish, and barely managed to scrape the cash together for the UK and European patents. Let it sit, naively thinking that someone would want to develop this tech and would be in touch.
About six years ago a large corporation filed a patent that was substantially identical to mine - they replaced a spiral with a circle, as it's cheaper to manufacture, which, while covered by my claims, was secondary to the device. They shortly thereafter took the product to market. They did at least cite me in prior art.
From what I can gather it wasn't a commercial success, it added too much cost to the product it enhanced, but even if it had been, my recourse would've been the square root of fuck all.
So yeah. Patents are for corporations. They're there to stifle innovation and shut the small guy out.
Which is a shame, as that's literally the exact opposite of their purpose - they were developed to bring about a system that would release ideas to the public domain after a set period of benefit for their creator.
My "sit on it" behaviour is admittedly not their purpose, but neither was their "trample on it".
They are also typically used as a "mutually assured destruction"[1] war chest. For companies that have no intention of filing a patent lawsuit, but need some kind of insurance against that happening to them.
You file, buy, acquire, etc, a large enough portfolio of patents such that if another company sues you, your broad portfolio almost assures they are "violating" one of your patents. Now you have leverage to make the initial lawsuit go away.
Funny to see my old blog post mysteriously resurface on the front page. I should note that IANAL but have spoken to many lawyers about this post over the years and am happy to answer any questions I can about it.
My $0.02: If you don't have a lot of money, ignore patents for now, but realize that as soon as your ideas are public they are internationally unpatentable.
If you have a little money, file 1-2 key patents on your core ideas.
If you're rolling in money, hire a patent firm to chart the landscape for you in a way that doesn't expose you to willful infringement.
Note: the entire system is a steaming morass; I try to be pragmatic about it, but don't disagree with those who want to flip the table and ignore the whole mess.
> ... filing a provisional patent starts a 1-year clock where, if you don't find the money and time to file a real patent, your IP irrevocably enters the public domain.
IANAL, but I believe this is incorrect. My understanding is that if you don't follow up with a non-provisional ("real") patent application, the provisionals don't count as prior art, and in fact might as well not exist. This is because provisionals are not published and cannot be discovered until the corresponding non-provisional is published. Would prefer if an actual patent lawyer could confirm, however.
> but realize that as soon as your ideas are public they are internationally unpatentable.
Most countries have a grace period[0] of 6 months to a year where you can still file for patents even after public announcement. The grace period is one year for US.
Any public disclosure of your product (which could be as simple as a demo to potential investors not under NDA or a YouTube video), "publications" including web pages, and "offers to sell" which may include advertising. Announcing the name of your product probably is not a problem, but a splash page that describes how it works or on boarding users could make your idea public. The details can get tricky.
If you think you might want a patent, don't hesitate to talk to a patent lawyer to make sure you are not waiving your rights, otherwise you'll regret it. You can always choose not to spend money on the patent application but make that decision after you know what you are doing.
Hi, a familiar found a patent similar to her idea, with the difference being one word: "custom".
her product idea is " non-custom" (off the shelf). Is that difference enough for a patent?
Triple damages? as in, if the opposing side can prove that you sometime read the patent in case, you get punished 3x because it's the same as willfully violating the patent?
I have actually been told by legal people at my employer that if it can be proven that anyone at the company has read a particular patent, this can occur. So, yeah, the system is rediculous. But no looking at any patents related to software for me, I guess.
One could reasonably make this same point about EULAs. From time to time, I'll read the EULA and, no, it doesn't take so long after you skip all of the "PRODUCT OFFERED WITHOUT WARRANTY," and "COMPANY CORP MAY HEREIN BE REFERRED TO AS 'WE' OR 'US'".
You just skip to the part about fees, termination policy, what they'll do with your data, and call it a day.
I just click "Accept" because I am a terrible human being that way. Hasn't bitten me yet, but I just assume that it could happen any day now. Then again I think that the ones that could absolutely devastate you wouldn't actually hold water in court, would they?
Any tipps for searching for patents? Or making sure if a patent exists or not? For example I would be surprised if the SET card game wasn't patented [1], but I couldn't find it.
I still can't find the SET patent. How do I make 100% sure that it doesn't exist? Should I skim through all the existing card game patents released in a plausible time frame or what?
IANAL (just the OP) but - imagine you invent a self driving car, and you'd like to patent it. Your lawyer tells you not to read prior art, because you don't want to be liable for willful infringement. Also you've been living in a cave, so you don't really know what prior art there is out there. You write claims like this:
Independent claim: Self driving car. (You really hope you get this, but it's so broad, you probably won't).
First dependent claim: The previous claim, where in the self driving mechanism is an actuator applied to a gas pedal. (Now you're going after the specific way you accomplished the broad problem - hopefully, even if someone's patented a self driving car before, they did it some other way, so you can protect your preferred category of solutions, and force competitors to take a different approach).
Second dependent claim: the first dependent claim, where the actuator is a brick. (If all else fails, you've at least protected the precise mechanism that you used - not enough to keep out a competitor, but at least enough to preserve your unique solution).
The patent office will often strike the independent claims but leave some dependent claims around, so you craft them strategically to get at least some protection.
But if the patent office doesn't accept your independent claim, one of the dependent claims must become a new independent claim, right?
So it's simply for the process of getting a patent (and some cost issues with registration)? After the patent has been granted they are truly unnecessary?
You may have come up with what you think is a great new idea and several variations that are also useful. You claim the broadest one as an independent claim. And the refinements are dependent claims. The patent office may agree, and issues all claims.
If, later it turns out the big idea was not new, but the refinements are, then you may find yourself with an invalid independent claim but valid dependent claims (which are treated as though they stand on their own). Although you could have filed the dependent claim as independent just the same, it saves paper and cognitive time analyzing it, which is a good thing. And for that reason patent fees are more expensive if you add more independent claims rather than dependent.
IAAL and I did a lot of patent prosecution for one phase of my career, about 12 years ago. The top three reasons there make sense to me. The justification I remember as being the main one is the doctrine of claim differentiation: the existence of one or more dependent claims adds support for a relatively broad interpretation of the independent claim, i.e. the independent claim is presumed not to require the additional limitation(s) recited in a dependent claim.
I failed to read the claim in 60 seconds for sure, here is a quick demo of the "independent claim":
"
What is claimed is:
1. A method for using traffic categorization to select use of different network configurations in a wireless network, the method, comprising: detecting an activity state of an application on a mobile device which traffic is originated from or directed to; detecting a time criticality of data contained in the traffic to be sent between the mobile device and the host server; determining a timing with which to allow the traffic to pass through based on the activity state or the time criticality; controlling communication use on the mobile device based on the timing with which the traffic is allowed to pass through; and selecting a network configuration for use in sending traffic between a mobile device and a host server in the wireless network based on an activity state of an application on the mobile device for which traffic is directed to or originated from, wherein a network configuration with a slower data rate is selected when the application is not interacting with a user.
2. The method of claim 1, wherein, 3G, LTE, or 4G network is selected for passing through traffic when the application is active or when the data contained in the traffic is time critical.
3. The method of claim 1, wherein, the activity state is determined by whether the application is in a foreground or background state on the mobile device.
4. The method of claim 1, wherein the activity state is determined based on whether a user is expecting data contained in the traffic directed to the mobile device.
5. The method of claim 1, wherein, when the data is not time critical, the timing with which to allow the traffic to pass through is set based on when additional data needs to be sent.
6. The method of claim 1, wherein a network configuration with a slower data rate is selected when the application is running in the background.
7. The method of claim 1, wherein a network configuration with a slower data rate is selection when the data contained in the traffic is not time critical.
8. A system for categorizing traffic in a wireless network, the system comprising: means for detecting an activity state of an application on a mobile device which traffic is originated from or directed to; means for detecting a time criticality of data contained in the traffic to be sent between the mobile device and the host server; means for determining a timing with which to allow the traffic to pass through based on the activity state or the time criticality; means for controlling radio use on the mobile device based on the timing with which the traffic is allowed to pass through; and means for selecting a network configuration in the wireless network for use in passing traffic to and from the mobile device, wherein a network configuration with a slower data rate is selected when the application is not interacting with a user.
9. The system of claim 8, wherein a 3G, LTE, or 4G network is selected for passing through traffic when the application is active or when the data contained in the traffic is time critical.
10. The system of claim 8, wherein, the activity state is determined by whether the application is in a foreground or background state on the mobile device.
11. The system of claim 8, wherein the activity state is determined based on whether a user is expecting data contained in the traffic directed to the mobile device.
12. The system of claim 8, wherein, when the data is not time critical, the timing with which to allow the traffic to pass through is set based on when additional data needs to be sent.
13. The system of claim 8, wherein a network configuration with a slower data rate is selected when the application is running in the background.
14. The system of claim 8, wherein a network configuration with a slower data rate is selection when the data contained in the traffic is not time critical.
15. A non-transitory machine-readable storage medium having stored thereon instructions which when executed by a processor causes the processor to perform a method for using traffic categorization to select use of different network configurations in a wireless network, the method comprising: detecting an activity state of an application on a mobile device which traffic is originated from or directed to; detecting a time criticality of data contained in the traffic to be sent between the mobile device and the host server; determining a timing with which to allow the traffic to pass through based on the activity state or the time criticality; controlling communication use on the mobile device based on the timing with which the traffic is allowed to pass through; and selecting a network configuration for use in sending traffic between a mobile device and a host server in the wireless network based on an activity state of an application on the mobile device for which traffic is directed to or originated from, wherein a network configuration with a slower data rate is selected when the application is not interacting with a user.
16. The storage medium of claim 15, wherein the method includes selecting a 3G, LTE, or 4G network for passing through traffic when the application is active or when the data contained in the traffic is time critical.
17. The storage medium of claim 15, wherein the method includes determining the activity state by whether the application is in a foreground or background state on the mobile device.
18. The storage medium of claim 15, wherein the method includes determining the activity state based on whether a user is expecting data contained in the traffic directed to the mobile device.
19. The storage medium of claim 15, wherein the method includes setting the timing, when the data is not time critical, with which to allow the traffic to pass through is based on when additional data needs to be sent.
20. The storage medium of claim 15, wherein the method includes selecting a network configuration with a slower data rate when the application is running in the background.
21. The storage medium of claim 15, wherein the method includes selecting a network configuration with a slower data rate when the data contained in the traffic is not time critical. "
> A non-transitory machine-readable storage medium having stored thereon instructions which when executed by a processor causes the processor to perform a method for X
And then I heard from some start-up about another: - What are they offering?, they don't even have IP. Nobody is going to buy them...
I got to the conclusion that they are more than any other thing a way to demonstrate value for small companies and a tool for big companies to delay competition from new entrants. I haven't understood yet how patent offices take care of the prior art...