Filing a Patent

Dude, don't listen to these people telling you what is patentable or not, unless they are either a patent attorney, or they have several patents under their belt.

The reason being that there is a lot of complexity around patents, from the actual rules (laws) to the different court interpretations of the same law, to precedent and previous settlements. Even the patent examiner looking at your patent app matters.

Patent attorneys know this. Talk to one.

Having gone through the process (http://www.freepatentsonline.com/y2005/0151995.html), I can tell you that it is not simple. A patent application can be an effective tool to get others off your case (off your industry/niche) even if you do not have the patent app approved yet.

Talk to a patent attorney. Patent law is like accounting, 2+2 is whatever you like it to be.

I agree with Paul McMillan and add an anecdote.

Rather than argue about what is patentable, lets look at how useful it will be to you.

1. A locked door keeps out the honest people.

A patent will not stop another company from using your idea. It gives you the right to sue for infringement, but unless you have the resources, it is a moot point.

A past small company owned a patent and the code for a small but crucial part of embedded algorithmic router code. A fortune 100 company infringed our patent, which I mentioned to the large company using the term our patent attorney instructed me to say, "your implementation is relevant to our technology." The licensing guy responds, "if you mean we infringe on your patent? Get in line, we receive 150 claims a week."

So, unless you have millions to spend on lawyers, the reality is, it is not worth going beyond filing a provisional patent. This you can do relatively inexpensively. With the provisional filed, you can talk about your idea and have one year to decide if it warrants the full patent process.

Community, content, and customers are what builds a web product's defensibility.

I agree with James. A patent is probably not very useful to you at this time.

Figure out how to implement your idea, and go do it. You'll waste time filing a patent, and by the time it is actually approved the idea will be 7 years old. In the meantime, a dozen companies will have had a chance to try your idea and succeed or fail. Make sure that you're one of the ones that does well.

Avoid the fallacy of thinking you'll be able to patent an idea and then sell that patent.

You may want to read this article, and do more research on the Bilski ruling to decide if a patent is possible for you: http://www.fsf.org/news/esp-bilski

Basically, the US Supreme court has changed the rules on software and business model patents so they need to be tied to a machine.

I think a patent on a web-based application may be a waste of resources, but you need to talk with a patent lawyer about it.

Update: I was incorrect, it was not the US Supreme Court that ruled already but the Federal Circuit court. But, some patent cases have been won by lower courts citing the Federal circuit court, so patents on software right now is risky.

Here is an interesting view from what appears to be a pro-patent group: http://www.law.com/jsp/article.jsp?id=1202431147519

The challenge being a startup and filing a patent is that you don't know if your patent is valid even if granted by the USPO. You would actually have to file a lawsuit, and then the company you file against will likely contest the validity of the patent or look for tiny problems in which to invalidate it such as prior art, authorship. To contest these claims you would need to hire a patent attorney and spend a lot of time without knowing whether you will prevail in the end. A lot depends on your funding situation and your stomach for spending time with lawyers. There have been startups which were successful because of a patent portfolio and royalty model, but I think its more the exception than the rule. There have been some big awards to small companies, but the companies needed major financial backing to prevail.

This is what I think skillguru...

where do you see your business 2 or 3 years from now? What is your exit strategy? Do you have an exit strategy?

These are questions I ask myself, and the right answer should be either go public, or sell to Google. Any other answer and you are most likely going to end up with a few thousands dollars only, if anything. If you are entering the start-up world, I imagine you want the big bucks, as all of us do (apart from the adrenaline rush and the camaraderie).

So with that in mind, how do you feel about a patent on your process or idea? Do you feel it's important now? Imagine you were Google, would you buy your company if it had no protection?

In my case, because of this, I think that a patent is a must, no doubt about that. Otherwise, no one would get one if it was so useless as people here make it appear to be! Google is Google now, but back then it was just another start-up, like all of them. Look at their first patent filing dated 1997. They got their first 100K check seed money one year later, not before.

So to answer the question: is it a good idea to file a patent for a web based product? Since this, as I argue, is not a bad idea, then the answer should be YES, by definition, it is a good idea.

PD: In fact I'm looking for a good patent lawyer in the US now so if any of you can recommend one I'd be most grateful.

Yes, implementing your idea successfully should be your top priority, whether or not you hold a patent. A single software patent by itself does not usually present a significant barrier to your competitors, unless it is truly unique.

Large or well-funded companies that want to put up competitive barriers through patents do so by the filing of dozens of related patents, usually, and often for ideas they never plan on implementing. This is an expense that they can bear since it's part of their strategy and they have deep pockets.

A smaller startup, unless they have significant venture backing, has to weigh the expense of patent filing versus the benefits. Also consider that patents currently take years to go through the process. For example, I have patent applications that were filed back in 2001 that still are awaiting review by an examiner; this is not unusual.

Patents are most valuable in fields like drugs, chemicals, manufacturing, consumer goods, etc. Software patents are risky, even without the additional question of Bilski. Risk can be good! But you need to look at the cost and time involved, and what your goals are.

Definitely consult a patent attorney. A short consultation, even by phone, may be worth your time if you're serious about this.