Should I Bypass a Patent Search at this Stage of Product Development?

One big question is "what does a patent get you?"

1. A patent gets you the right to spend $40,000+ suing anybody who steals your idea. Do you have that kind of money?
2. A patent helps establish a barrier to entry -- it keeps others out of your market. Do you have any other barriers to entry?
3. A patent gives you something that investors might value. Do you have other things investors might value?
4. A patent provides a defense against competitors looking to prevent you from distributing your product.

Patents can be great things to have. But they're not the be-all end-all, nor are they even necessary to doing business.

I don't think its a bad idea to do a little research to make sure you are not in blatant violation of any existing patents. But my experience is software and patents are a waste of time except for the attorneys. Get the product to market, validate the interest, then build the best application you can.

I have been down this path, and in retrospect I wish I spent the time creating the software instead of worrying about protecting the intellectual product.

The first thing to do is properly document, date and have someone witness a description of your invention. This is critical to determining when your idea was created. In the US, it's a first to invent system and not a first to file.

Once you have done that, then file a provisional patent. Be as broad and as general as you can. This provisional filing will set your filing date, which is important but not as important as your invented data. You should do some research as to prior art but don't worry too much about that. The critical thing is to document the invention as broadly as you can. The reason is that anything outside your provisional filing scope will be considered new material or a new invention.

Even though you have a year, don't wait till the last minute. The law is you have a year to file the full patent, which means it has to be completed in a year. The other thing to consider is doing some of your own research and providing that to the lawyer.

Researching a patent is expensive for a lawyer to do and they will not be as familiar with your invention as you are. So, watch the research fees and try to give your lawyer as much up front information as you can.

There are reasons to have a patent, and in the software industry, it is important to have a patent if you want to talk to investors - they want to hear that you have a novel, and theoretically defensible product. On the other hand, actually suing for patent infringement and winning is highly unlikely to occur, at least, not at this stage.

You need to do some basic research to ensure that you're not in blatant violation of an existing patent, and you need to file the provisional patent so that you can decide later if a patent is warranted (because if you don't, and should have, you may not be able to) As well, that will let you tell any potential investors that you have a patent pending, and leave it at that. At the end of the year, if you involve a lawyer, they will do a proper patent search at that time.

You need to be very careful about how and when you conduct a Prior Art search. For one thing, reading patents is very dangerous since if you do wind up infringing on an existing patent, you are opening yourself up to greater penalties than if you just stayed ignorant.

In all matters patent related, be sure to seek out competent legal counsel. I'm not an attorney and this is not legal advice.