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Patents Your Rights Online

Should I Publish Or Patent? 266

Posted by CmdrTaco
from the get-a-lawyer dept.
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?'
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Should I Publish Or Patent?

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  • by Xiph (723935) on Thursday October 15, 2009 @09:35AM (#29756345)

    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.

  • Re:The choice (Score:5, Insightful)

    by TheKidWho (705796) on Thursday October 15, 2009 @09:37AM (#29756381)

    Oh quit the moral bullshit, people need to eat too and rent isn't free.

  • by Tobor the Eighth Man (13061) on Thursday October 15, 2009 @09:43AM (#29756449)

    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.

  • by gr8_phk (621180) on Thursday October 15, 2009 @09:44AM (#29756465)
    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.
  • by Geoffrey.landis (926948) on Thursday October 15, 2009 @09:49AM (#29756519) Homepage
    The sad fact is that nine out of ten patents don't make any money. I don't mean, "don't make enough money to pay back the expenses of patenting"-- I mean, don't make any money.

    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... [google.com] :)

  • by Geoffrey.landis (926948) on Thursday October 15, 2009 @09:57AM (#29756609) Homepage

    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

  • Really? (Score:2, Insightful)

    by denzacar (181829) on Thursday October 15, 2009 @10:03AM (#29756681) Journal

    Does your boss read slashdot?

    Cause, boy do I have an Insightful and Interesting post to show him/her.

  • by NoTheory (580275) on Thursday October 15, 2009 @10:05AM (#29756709)
    Oh, naïveté.

    Nothing will stop them from filing their patent unless you are aware of their filing, and object.

    Then, if you were to do something w/ your idea, they may very well sue you, regardless of their patent's invalidity, making the gamble that you'd rather settle than deal with the legal proceedings required to invalidate their patent.

    These guys aren't doing it cause they're smart. They're doing it because they think there's easy money to be made, and it's a pain in the ass to defend yourself in court.

    This behavor is called patent trolling. I figure any careful reader of Slashdot would recognize this modus operandi, given it's frequency in News for Nerds.

    So what can i say?
    You must be new here.
  • by Peaker (72084) <gnupeaker@yah[ ]com ['oo.' in gap]> on Thursday October 15, 2009 @10:08AM (#29756755) Homepage

    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.

  • by N Monkey (313423) on Thursday October 15, 2009 @10:12AM (#29756807)

    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.

  • Re:The choice (Score:2, Insightful)

    by Dishevel (1105119) * on Thursday October 15, 2009 @10:20AM (#29756941)
    Patents and Copyright are not evil. They are in fact a bonus to our society. The problem is with the ways special interests have warped patent and copyright to serve themselves rather than the public good. The pansy ass posters who think that everything should be given away are for the most part DIPSHITS.

    Patent your idea. Then don't go around being an ass about it. Don't try to extend your right for 937 years. Do not sue anyone who comes up with anything close to your idea. And for God's sake do not start that crap where you can amend your patent to cover shit it never did in the first place so you can sue someone.

    Then you will be a fine upstanding member of the community who dose well and makes money.

    I win

  • Re:The choice (Score:2, Insightful)

    by elnyka (803306) on Thursday October 15, 2009 @10:24AM (#29756997) Homepage

    Your choice is whether to be selfish or decent. Are you going to stand on the shoulders of giants, but sue anyone who would stand on yours?

    How you proceed says a bit about who you are.

    Bullshit morality by proxy combined with rhetorical, ideologotardic nonsense that can neither be proved, nor argued for logically.

    Prove to me in a logically consistent manner that decency and selflessness are inevitably inconsistent and incompatible with one's natural right to get remunerated/recognized for one's original and hard-earned intellectual work, and to protect that natural right should the individual desires so.

    Prove to me also that absolute selflessness as a trait is obligatory for one to be decent (as opposed to a voluntary act might increase, but never defines decency), and that the exhibition of such a trait mandates ones to surrender one's natural right get remunerated for one's originally created intellectual work.

    Prove that, and we can talk. Your ability to prove this, and your willingness to respect other peoples' rights will say not a bit, but a lot about you, your intellect and your decency.

  • Small entity? (Score:5, Insightful)

    by AliasMarlowe (1042386) on Thursday October 15, 2009 @10:28AM (#29757061) Journal
    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 [uspto.gov]. 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 [uspto.gov], and get a copy of 37CFR part 1 (patent rules) and the MPEP http://www.uspto.gov/patents/law/index.jsp [uspto.gov].

    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.
  • by swillden (191260) <shawn-ds@willden.org> on Thursday October 15, 2009 @10:31AM (#29757103) Homepage Journal

    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.

    Agreed.

    The notion of patents was created to protect not just ideas, but inventions -- complex collections of moving parts. At the heart of a truly novel invention, there's typically one or two really good ideas, but those ideas are just the beginning of the effort needing to make something that actually works.

    Take your idea, and build something from it, and then you'll have something of value to protect. The idea itself isn't worth much.

  • by nine-times (778537) <nine.times@gmail.com> on Thursday October 15, 2009 @10:34AM (#29757151) Homepage
    Prior art doesn't necessarily stop them from patenting, and if they get the patent it won't necessarily stop them from suing. Sure, unless there's a travesty of justice (not out of the question) you'll win the lawsuit, but that won't necessarily keep it from being expensive.
  • Re:come on (Score:4, Insightful)

    by WaywardGeek (1480513) on Thursday October 15, 2009 @10:47AM (#29757387) Journal

    Geeks on slashdot get to have it both ways - getting rich while making the world a better place. Try starting a company that offers good jobs to deserving employees, and see you you feel as they raise good kids and enjoy their work. Invent something worthwhile, and force the world to benefit from it - you'd be very surprised at how often the world passes by perfectly good ides. Only the inventor can champion new technologies properly. Be a do-gooder: start companies, develop open source projects when it makes sense, improve the world with your ideas. Being a big geek rocks.

  • 10% not more (Score:3, Insightful)

    by ElitistWhiner (79961) on Thursday October 15, 2009 @11:16AM (#29757791) Journal

    Less than 10% of the profit-stream is attributable in my experience to patent technologies. True value is that other 90% brought to the market by the corporation in design, development, marketing and support.

    Waaay toooo much emphasis is placed upon technology in the value chain of venture building capital. Toooooo little protection is afforded by USPTO to protect by patent alone the great ideas and inventions.

    Sell the idea/tech to the VC community who are best equipped to monetarize a marketplace solution to the problem you've solved. A 10% or less share after all is said and done is huge for the inventor.

  • Re:come on (Score:3, Insightful)

    by HungryHobo (1314109) on Thursday October 15, 2009 @12:40PM (#29758959)

    This is also why there's almost no interest in coming up with drugs to treat diseases which primarily effect poor people in the 3rd world.

  • by Brigadier (12956) on Thursday October 15, 2009 @12:53PM (#29759137)

    In early days you were required to have a patent lawyer in order to perform a thorough search of the archives. They gave you the template and you wrote in the substance. You no longer need this http://www.google.com/patents/ [google.com] has all the patents listed in a very searchable format. you can do the search your self find all references and using legal zoom file the patent yourself. You don't even have to mail it there are patent offices all over the place. In my experience (or should I say research) you have a better review process as an individual with a will written an researched patent than a lawyer. I'm also desperately trying to find the answer to this question, one that has prevented me for years from acting on what I believe is a useful idea. One helpful fact for me is the proposed problem that my patents attempts to address has been patented several times. So I simply (hopefully) is site the reference use there example to propose my idea.

  • publish or perish (Score:3, Insightful)

    by Psychofreak (17440) on Thursday October 15, 2009 @12:55PM (#29759165) Journal

    In some industries its publish or perish.

    For one case there was a device invented by a woman I know to aid in moving patients about in a hospital bed. It improves patient safety and staff safety. She was told that because she patented it, the companies would wait out her patent even though she was not seeking significant money for the idea. Profit for her would have been having a safer job.

    Publishing would have been better, establishing prior art is sometimes more important since it encourages competition. Patenting however protects an idea that you are able to implement and use, reducing competition for a period of time.

    Phil

  • Re:come on (Score:3, Insightful)

    by Obfuscant (592200) on Thursday October 15, 2009 @01:58PM (#29760037)
    Consider that X $ will be made from your idea, whatever you do. Would you rather A: Give those money to a rich corp. or B: Have those money for yourself...

    Consider that an unpatented idea can be used by multiple corporations in competition, and that by not having to pay royalties all of those companies can sell the product for less because it costs them less to produce while still making the same profit.

    Yes, a single source can charge what they want and pocket the money they'd have paid in royalties, but any competitor who comes along and sells the same product for less will beat them in the market.

    I.e., your either/or situation isn't that clear cut. It's not a zero sum game. And, as another poster commented, the woman who patented the idea for moving patients made zero because nobody used her idea.

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