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Patents

Patents for the Little People? 467

Posted by Cliff from the empowering-the-underdog dept.
_ph1ux_ asks: "I have an idea that i would like to patent. I have called several patent attorney's in the San Francisco Bay Area and inquired about the costs associated with doing a patent search and filing. I was quoted a flat fee for the search by some, ranges by others - and some more sound sounding advice from others. Some attorney's want $450 for the search and a range of $3-6,000 for the filing - with up to six months before they are ready to just file the application for you. I have been researching on USPTO website to see if there are any pre-existing patents that cover my idea now for several days, and so far have found none. In the past I was able to quickly locate existing patents that thwarted my previous patent attempts - so this time it looks promising. My personal feelings for attorneys and lawyers aside - I want to know what have other slashdotters done with regards to pursuing patents, specifically if it is at all possible for an IANAL to successfully apply for a patent (cheaply)? Can you tell me what other avenues there are for me online or otherwise, while not giving away a large stake in my invention?"
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Patents for the Little People? More

Patents for the Little People?

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  • Screw the lawyers.... (Score:2, Informative)

    by mdechene ( 607874 )
    ...just file it yourself. Last I checked this was a valid option, if you don't mind the mountain of paperwork.

  • Hmmm.. (Score:5, Funny)

    by unicron ( 20286 ) <unicron@NOSpAm.thcnet.net> on Wednesday September 18, 2002 @03:53PM (#4284362) Homepage
    *Whips out paper and pen*

    So what exactly does this product do? Please be as specific as possible, and email me any drawings you have of said product, including highly detailed autocad drawings.

  • IANAL (Score:2, Funny)

    by Breakfast Pants ( 323698 )
    IANAL but I would suggest you consult one. Don't hold that against me, IANAL!! Anyway if you can't consult one you could just simply file your patent and see if it gets rejected (IANAL Don't quote me on that!!!). Anyway, IANAL, good luck.

  • Traditionally... (Score:5, Funny)

    by Amazing Quantum Man ( 458715 ) on Wednesday September 18, 2002 @03:54PM (#4284376) Homepage
    I have an idea that i would like to patent.

    Traditionally, you couldn't patent ideas, only implementations...

    Of course, the USPTO has ignored that for at least a decade...
    • LMAO!

      Thanks for brightening my day.

  • PAtent guide... (Score:5, Informative)

    by ldopa1 ( 465624 ) on Wednesday September 18, 2002 @03:56PM (#4284399) Homepage Journal
    I strongly recommend going to to do searches on trademarks for your idea. [uspto.gov]

    Also, I like "Patent It Yourself" [amazon.com], which is how I got my patent application filed. It's a really good text. Also, if you need representation, talk to the guys at GrayCary [graycary.com]. They are a good bunch of folks, and they will do some consulting gratis and defer payment......

    • Re:PAtent guide... (Score:5, Informative)

      by WEFUNK ( 471506 ) on Wednesday September 18, 2002 @05:09PM (#4285036) Homepage
      "Patent It Yourself" is great, not only because it explains the whole patent application process in detail, but (more importantly) it helps you decide WHEN and WHETHER you should even file. And although he gives you detailed DIY information, he's also honest by recommending a patent attorney whenever possible.

      Pressman uses flowcharts to explain the advantages of not patenting at all (like the Coke formula) and how to protect your idea while doing the market research to find out if a patent is worthwhile. He also spends a lot of time giving advice on how and to whom to sell your idea and to figure out how much it might be worth, patent or no.

      For instance, you should always begin by documenting your invention (getting a notebook witnessed and notarized - mailing it to yourself DOES NOT WORK). Then, after a little preliminary research, you could apply for a provisional patent yourself (couple hundred bucks and you don't need claims) or with the advice of a lawyer(only a bit more if you do most of the work). Then you generally have up to a year to speak with potential customers and do further research to see if your "patent pending" idea is worth pursuing yourself, worth selling to someone, or if you should just give up. If you find out its a REALLY good idea, you're probably stupid not to get the full application professionally done. If it has limited potential, then maybe you could just do it yourself.

      He also provides a lot of information on how and whether to foreign file. He'd be a great subject for a Slashdot interview and I know he's done on-line chats before.
  • Wow, I didn't realise that it costs thousands of dollars to check out a patent. So what do those guys who make "joke" patents do, like the guy who patented how to sit on a swing, or the patent on how to tie your shoelaces and crap like that, do people really spend $5000 just to show that the Patent Office misses daft patent applications ? Presumeably *they* (the silly patent people) can do it cheaply ?
    • My understanding is that you can do it, and you can do it right. I, for one, would spend the money to protect myself now and not have to worry about thousands and thousands of dollars of legal fees when there's actually something at stake. Always put the money into the lawyers at the beginning. My dad taught me that and its served me very well since then.

  • Consider offering a cut of the action instead (Score:5, Informative)

    by uk_greg ( 187765 ) on Wednesday September 18, 2002 @03:57PM (#4284412)
    You might be able to find an attorney that will do the work without a flat fee in exchange for a percentage of the revenue stream created by the patent. We have a family friend whose father was a patent attorney and did *very well*, thank you by taking this approach on occasion.

    The usual warnings about finding an ethical attorney (an oxymoron, I know) would likely apply even more in this situation, though.
    • What a terrible idea! When you have no money $4000 is a lot. When you're looking at making $200,000 a year from your patent, $4000 is nothing, but 10% of your profits sure is. Terrible idea!
    • If I recall correctly, there's a website that offered a public 'announcement board' for concepts and ideas which were heading for the USPTO. Idea being that the poster would be authenticated somehow and the idea would be posted as a form of prior art.

      I agree with the ethical attourney line. Also of note is that patent and trademark attourneys tend to be specialists. (Don't go to the local ambulance chaser or real estate closer to detail IP law for you.)

      It should be possible to do your homework on attourneys before you leave home with the thingamabob online or over the telephone.

  • Personal liability? (Score:5, Insightful)

    by MattGWU ( 86623 ) on Wednesday September 18, 2002 @03:58PM (#4284421)
    This is nice and timely! I've been thinking about this myself lately, and I've wondered something different: In todays highly litigatious society, are you opening yourself up for alot of hassle in filing a patent? No question that getting your origonal idea locked in before anybody else is a good thing, but what happens when somebody challanges you, or you have to challange somebody else? It may be a remote possiblity, but are 'the little guys' assuming lots of personal risk in basically defying the world to capitalize on their idea? You find a lawyer with a flat rate to file your patent, then what? Where are you going to get the tens of thousands it would likely cost to defend your patent in court? Did the flat rate cover him actually reading the patent to determine if it's overbroad or worse, not broad enough? There seems to be alot to think about with a patent, especially if you don't have in house counsel at your disposal. This is a pretty glib way to think about it, putting patents in the category of those nice things that protect big business but are out of reach of the little guys.
    • Actually, if he does not have the resources to defend his patent, he'll lose it. If he does not have the resources to litigate against people that abuse his patent, he'll lose it.

      All Patent and Copyright laws do is give the owner the right to sue to protect their property. If they do not have the money to sue, they will lose. It's very simple, and does tend to favor the well off.
      • If he does not have the resources to litigate against people that abuse his patent, he'll lose it.

        Does this mean that if enough people infringe on a copyrighted work without getting sued, the copyright becomes invalid? How about just in the medium that wasn't properly protected?

        Maybe the MPAA and RIAA really *should* be scared...

  • IANAL (Score:4, Funny)

    by NanoGator ( 522640 ) on Wednesday September 18, 2002 @03:58PM (#4284423) Homepage Journal
    IANAL, but I predict that the comments in this article will lure lots of porn lurkers from Google.

  • Nolo Press: Patent It Yourself (Score:4, Redundant)

    by nweaver ( 113078 ) on Wednesday September 18, 2002 @03:59PM (#4284426) Homepage
    Buy a copy of Patent it yourself, by Nolo press, eg at Amazon [amazon.com]. It is a VERY good text on how to go through the patent process, both with and without a lawyer.
  • If you are worried about the cost to file the patent, why on earth are you bothering? With the exception of your resume, having a patent will be absolutely valuless to you unless you are willing to pay your lawyers to sue someone infringing on your patent.

    If you don't have the money to file, you don't have the money to defend your patent.

  • Self-filing: sometimes, not always (Score:5, Informative)

    by Doug Merritt ( 3550 ) <doug AT remarque DOT org> on Wednesday September 18, 2002 @04:00PM (#4284445) Homepage Journal
    A friend has filed his own patents starting with one granted in 1980. That is definitely the cheapest approach.

    On the other hand, not everyone has the right skills and mindset to search for prior art well, which is important.

    Similarly he says (and I sure believe) that it is very important to write your patent very very clearly, and to have very clear diagrams, because if the patent is ever contested, you want to be able to convince a non-technical jury as easily as possible.

    That kind of clarity of writing and creating diagrams is not all that common, so using professional help might be in order.

    Then again, not all professionals are all that great at clarity, either! Many patents' writing suck, IMHO.

  • What are you going to do with the patent? (Score:5, Informative)

    by Chuut-Riit ( 48419 ) on Wednesday September 18, 2002 @04:01PM (#4284459) Homepage
    If its primary purpose is to decorate the wall of your den and impress people at Superbowl parties, then by all means, do it yourself. If you actually intend to base a company around the technology covered by the patent, then you're deluding yourself if you try to draft and prosecute the patent yourself. I can tell you, as a former patent examiner and as a practicing patent attorney, it's a very few lucky inventors (or those who have had lots of involvement in the patenting process at the corporate level) who get any type of claim coverage worth having.

    In fact, there are so many potential pitfalls and minefields, the Patent Office will generally recommend that you get an attorney or agent once they realize that you're pro se (doing it yourself). It's just too easy to draft a specification that is nonenabling (in which case you've wasted your filing fee), to draft claims that are too narrow or exclude the commercial embodiment of the invention, or narrow the claims during prosecution in a way that creates an estoppel (stops you from claiming that someone who makes insubstantial changes to his device to avoid you claims nevertheless is an infringer).

    Try working with smaller firms, and look for firms that use patent agents, rather than attorneys. These are people who have passed the exam qualifying them to prosecute patent applications, but generally are paid less (and billed out for less per hour) than attorneys. Then let an attorney do the actual prosecution, since they tend to be more familiar with issues that relate to litigation, like file history estoppel, etc.
    • As someone who gets a check every quarter from a patent I filed myself, I must say you are wrong that you need an attorney.
      Certianly, you must research and be smart about it, but you do not need an attorney.
  • done that.
    Looking back On my experience I say, just fill out the paperwork, and file for yourself.

    For an individual, it is only a few hundred bucks. If it is in conflict, they will send you a notice and you can find out what patent caused it to fail, then make relevent changes yourself. I believe you get 2 tryies after the original for free.

    This is on there web stie, and since filling will cost you as much, if not less, then having an attorney do the search, why use them?

    as you probably know, all the filling is coded.
    for example, all diary products would have a designation, for this example lets say it 11.
    then all isc cream product will have a a designation, let say 22.
    so if you were looking for an ice cream product, you would look under 1122xxx

    I'm not sure og the actual designation, this was only an example.

  • Personal Patents (Score:5, Informative)

    by MrIcee ( 550834 ) on Wednesday September 18, 2002 @04:02PM (#4284470) Homepage
    I have been a part of a number of patents while working for various corporations. I would personally suggest against pursuing a patent on your own.

    There are so many little getchas in the process, and knowing the langauge and how to dot the i's and cross the t's is extremely important, if you want to have a robust patent.

    Additionally, while you can use the patent search systems to see about patents that are issued - patent lawyers have their own mechanisms and can often do a much better job of the process.

    Remember, this is about protecting your intellectual property and idea - you don't want to have a mistake or it will possible be thrown out or challenged (which can be very very costly). If you spend a bit more money upfront to get the job done correctly, and then something happens, you have additional fall-back to pursue.

    All patent attorneys I have ever dealt with have always told us what they wanted in the way of write-ups, which we provide. Then they came back to us with EXTREMELY DETAILED questions. It's quite extrodinary to see a non-technical person do it - but they do. And I think that's the point... because the patent process is LESS about what your patenting and MORE about making sure it's patented CORRECTLY. So they seek definitions, and they use those definitions to ensure that your unique, and if your not unique, they get you to redefine it until you are. A pretty valuable service if you ask me.

    Remember too, it's all about the CLAIMS. And every patent I've ever read are VERY VERY difficult to read and understand. Usually patents take many readings, and pouring over the claims to understand what they mean in relation to each other. I seriously doubt if you have the ability to read the claims in the same way a patent attorney does - since it's in their language, not yours (unless your a lawyer ;).

    One final thought... because you are the inventor I submit to you that you are too close to your invention to be impartial about what it takes to describe your invention properly so that it is protected. What you would tend to fluff off as not be competiting or infringing, others may differ with you. It should be invaluable to you to have a professional second opinion from someone who knows how to do it.

    And don't go for the cheapest one you can find either ;)

    Aloha

  • It's language (Score:4, Informative)

    by Capt Dan ( 70955 ) on Wednesday September 18, 2002 @04:05PM (#4284490) Homepage
    A patent lawyer gave a speech in a undergrad class of mine all those years ago...

    The stated that the difficult thing about getting a patent approved is getting the language of the application correct.

    The USPTO is expecting certain language, format, and degree of description in an application. If the application does not meet their requirements, they will reject it, and ask that you rewrite and resubmit it.

    The benefit of patent lawyers is that they understand how to create patent applications, while the rest of us apparently really really suck at it. With a lawyer you can get the patent approved the first go around, instead of wasting months a years trying to write it yourself.

    So you need to decide, is getting the patent done quickly and efficently worth 6Gs? Or do you want to risk spending years rewriting your application, and find that someone else gets the patent in the meantime?

  • Maybe a little bit off-topic, but is there some way to "protect" an idea from being patented other than a patent? I mean like a GPL for patents (yes, I know copyright and patents are quite different). I might come up with something I think is a good idea but want all people to be able to use it for their own needs without restricting others. Again, something like the GPL for copyrights.

    (I suspect this has been asked before at /. but I was too lazy to search for it, sorry...)
    • I'm not positive, but I guess if you kind of "officially publish" the thing, for example in a peer-reviewed scientific journal, then nobody can come after you and patent it. True ?
      • True in theory. False in practice.

        Indeed, from what I've read here and elsewhere, the USPTO has actually occasionally issued patents against things that were already patented! It's probably very rare, but apparently it has happened.

        The USPTO can grant a patent on anything, and has shown itself to be willing to do so. Prior art doesn't stop them. Obviousness doesn't stop them. And even prior patents haven't stopped them, either, apparently.

    • The GPL doesn't work without copyrights getting involved. It relies upon them. What happens is that the original code author retains the copyright (or signs it over to GNU) and release the code with the GNU Public License. The authors copyright is what makes the enforcement of the GPL thoeretically possible. If there was no copyright (i.e. the code was in the public domain) it would probably be impossible for any licensing terms to be enforced on it. Corporations could release the software but withhold the source code, among other things.

      The same thing should work with patents: you patent the technology, then publish the details with a license with term similar to the GPL. It would probably be harder to enforce some aspects. It is, for example, much easier to show that one piece of source code is a modification of another than to show that one technology is a modification of another. But this sort of thing has been done in the past for things like algorithm patents.
      • There is perhaps a minor problem in that patents ALREADY require the details to be published. You cannot put some protective license around it.

        The best you could do would be to license the invention to others for free in exchange for them licensing any patents derived from your invention for free.

    • If you ask me, if you DO patent it, you should be able to just allow people to use it for free, but still maintain the patent. As the patent holder, don't you have rights to license it? IANAL, but it seems like you should be able to license it for free to anybody.
      • The big problem with this is that it takes thousands of dollars, and a lot of time, to get a patent. What's the point of that if you're not going to make any money on it?

        I think what this guy wants is to be able to allow people to use his ideas free-of-charge, without worrying that some stupid corporation will see it, patent it (i.e. steal the idea), and profit off of it (meanwhile keeping others from using it free-of-charge as the actual inventor intended).

        I know if I invented cold fusion or something similar, and wanted to give it to the world for free to better all of humankind, I'd be really pissed if some big oil company patented it and kept anyone from using it.
    • Publish your material. Publish it as widely as possible. If the morons who patent your implementation/idea don't do a lit search, and then get their patent invalidated, then that's their own damn problem.
  • And the answer is that there is no answer. If you are idea is good you want worldwide coverage since US coverage will simply force somebody to move offshore. However, if you end up staying solely on US soil you have to fork over the money. The problem of not doing that is that you will get a poorly worded patent.

    Consider it as follows. Would you actually let a lawyer write your code for you? Not at all since a lawyer does not understand code and you do not understand lawyer speak.

    That is why patent reform (eradication) is necessary. Patents only serve to protect those with money and not who should have coverage namely small time inventors.

  • Is this a vanity patent? (Score:3, Insightful)

    by shoppa ( 464619 ) on Wednesday September 18, 2002 @04:08PM (#4284518)
    Most patents are filed with the hope that they'll make the inventor money. Either through direct licensing or through (ugh) lawsuits later. So most folks regard the cost of a search and the legal costs of filing as a cost as doing business.

    If you don't want to spend the money to get a patent, I have to wonder if you plan to make any money from it. Is this a Patent Granted on Sideways Swinging [slashdot.org] sort thing?

  • A few random points (Score:5, Informative)

    by MountainLogic ( 92466 ) on Wednesday September 18, 2002 @04:09PM (#4284533) Homepage
    IANApL, but I have several grafted to my butt at work.

    1) Write it down. Date it. Sign it.

    2) File a preliminary patent application. It's only $60 apx? Beware that whe nyour patent issues this preliminary patent can be viewed by the public. 3) Have two people you trust AND who will understand it read it and sign & date the document

    4) Existing patent are a good thing. Yu will need to demonstrate to the PTO that you idea is close, but not the same. Do not hide any prior art or close to prior art. The reason is that should these other patent holders see your work they will say, "hey, this looks close we'd better go after them." If you patent lists these their patent you can say, "hey, the PTO looked at you patents and said they are different." The more "close, but no cigar" that you can find the better.

    5) Go ahead and do the leg work. Look at patents from IBM, etc for good examples, but beware even IBM files some stinkers. Even write it. Remember you pay by the claim.

    6) At least pay for a couple of hours of a patent lawer's time to "proof-read it." You shouold be able to find a solo patent lawer who will be flexable.

    7) Are you sure that you need a patent?

  • File a provisional application (Score:5, Informative)

    by balamw ( 552275 ) on Wednesday September 18, 2002 @04:14PM (#4284576)

    I was just going over this with a coworker... I'd suggest filing a provisional application to claim priority and protect your ownership rights, but then try to find someone with deeper pockets to follow it up with a formal application though a patent lawyer. Like others I advise against DIY unless you alread have some experience with the process as there are lots of little gotchas.

    Unlike a "real" application there are no formal requirements for text or drawings for provisional applications except that they ultimately fit in an 8.5x11. All you need is a cover sheet and an $80 fee if you do it yourself.

    Here are a few decent links:

    http://inventors.about.com/library/weekly/aa061701 a.htm [about.com]

    http://www.bpmlegal.com/provapp.html [bpmlegal.com]

    This one is also pretty decent and a bit more DIY info http://www.frompatenttoprofit.com/provisional_pate nt_aps.htm [frompatenttoprofit.com]

    Finally, the software mentioned there seems useful... http://www.patentwizard.com/ [patentwizard.com] and so are their FAQs http://www.patentwizard.com/htmls/support.htm [patentwizard.com], but if you were to go that route, you'd be out $580 for the software, filing and a flat fee review by their attorneys.

    Various universities have invention disclosure forms posted on the www (see e.g. http://www.google.com/search?hl=en&lr=&ie=UTF-8&oe =UTF-8&q=invention.disclosure.forms) That ask all the right questions. Look at some of these and adapt them for your needs, this will drive you to pout all the information together in the right form and send it to the PTO with the cover sheet and your $80.

    Balam

  • Great Resource (Score:2, Informative)

    by $beirdo ( 318326 )
    David Pressman's book Patent It Yourself [barnesandnoble.com] has proved a pretty good step-by-step reference for doing this. It's only forty bucks, a heck of a lot less than what you would have to give to some leech^H^H^H^Hawyer.

  • From an insider... (Score:5, Informative)

    by cenonce ( 597067 ) <anthony_t@ma c . com> on Wednesday September 18, 2002 @04:17PM (#4284608)

    Generally, the PTO's database is fairly difficult to search from the outside. While I work on the Trademark side of the Office, I can't imagine the Patent searching of the Office's database is easier.


    Additionally, (most) attorneys know the language the PTO is looking for, as well as how to word your initial claim so that it is broad enough to cover everything. You don't have the experience to do that. It would be akin to asking a typist to set-up your network.


    The USPTO makes it quite easy to file a patent or a trademark on-line for the average citizen (a pro se applicant). It is part of the Office's "strategic plan". However, I can tell you that the law for both patents and trademarks is full of little rules and requirements. Well over half of the applications I see on the Trademark side end up being abandoned 6 months later. I'd estimate that at least 80% of the pro se filed applications wind up abandoned for one reason or another. Unfortunately many of those end up abandoning because the applicant gets a long Office Action (i.e., a letter) from an examiner that has some fairly simple requirements that sound complicated becauase of the poorly worded form paragraphs the Office uses and the myriad of statutes that are cited.


    At the same time, it never hurts to file and see what happens. The filing fees are a little steep, but if your basic searching has looked good, then maybe it will only require a little bit of phenagling to get it through. Chances are you will not get an allowance straight off the bat... it rarely happens on the Trademark side. I can only guess that it happens even less on the Patent side due to the complexities of the application.


    Of course, being an attorney and one who works at the Office, I have to recommend that you get a patent attorney. 3 to 6,000 bucks is on the cheap side compared to what I've heard (over 10,000 bucks for a patent filing). But, one tip if you do file is that the USPTO's response time is generally six (6) months. There are exceptions so check the rules (Statute, CFR (Code of Federal Regulations), and MPEP (Manual of Patent Examining Procedure)... all available at the Office's website). If your application abandons, the fees to revive it are very high on the patent side (1,000 bucks). That's peanuts to a company like Dow or Microsoft, but a lot of beans for a solo inventor.


    Finally, if you file yourself and it ends up looking good, but you get stuck, you can always go to an attorney at that point (That happens a lot, at least on the Trademark side... again, can't imagine it is much different on the patent side). Again though, I gotta recommend that you get an attorney... sorry if I sound like an attorney, but, well... I am one! :)


    Good luck! Hope it works out for ya!


    -A
  • There's quite a bit of prior art in producing little people. Or do your little people never grow big?

    Do you expect a real pot of gold at the end of this rainbow?

  • My experience patenting things for Microsoft (Score:5, Informative)

    by danshapiro ( 529921 ) on Wednesday September 18, 2002 @04:21PM (#4284652) Homepage
    I worked at MS for 5 years and applied for 3+ patents while I was there (I'll probably get modded down just for that!). Here are some observations and thoughts from my experience.

    1) It's not worth doing a patent search. Most of the larger companies do not. If you've done a perfunctory search and it's not obviously covered by prior art, then go for it! Worst case, the patent office tells you about some prior art & you adjust your application to take it into account (this almost always happens anyway).

    2) It's hard, but very possible, to do it yourself. Read a lot. Look at other patents. See how it's done. If you value your time highly, you won't save money (since it's so time consuming to do right), but it's interesting and fun--plus, if you're student/unemployed/etc, you might not value your time so highly & it could be worthwhile. Also FYI, the patent office *likes* indpendant filers (by all reports), and will go out of their way to help you.

    3) Think hard about why you want a patent. Patents are useful if you're going to sell an idea, but most companies won't look at patented ideas (lest you claim later that they copied you). Patents are useful for protecting a new business, but that assumes that there's no other good way of accomplishing the thing your invention accomplishes. And patents are good resume fodder. If none of these apply, you might not want/need a patent and you can save yourself some effort.

    4) Patent applications are almost always rejected the first time around. Don't sweat it, it's just part of the process.

    5) Even if you do hire an attorney, doing your homework & writing it up well will save you money. Show him what you've got on your first visit to the office so you can get an professional opinion, and if it's in good shape, that's less hours you need to be billed. $200/hour attorneys are happy to transcribe your napkins for you, but it's usually more cost effective to do it yourself.

    6) It always takes a long, long, long time. The first patent I filed for, 5 years ago, is just now about to be issued. 3 years is very typical. 7) DON'T pay for anything other than a licensed patent attorney to file your patent. "Invention Submission Bureaus" and their ilk are just there to take your fees.

    8) If you can't monetize your patent yourself, it's almost worthless. The only other thing you could do is sit on it for years, then sue someone who accidently infringes on it (so-called "Submarining"), and that's just wrong (to my way of thinking). Use a patent to protect a business, but don't expect to build a business on a patent. Hope this helps. Good luck! --dan

    • Re:My experience patenting things for Microsoft (Score:4, Informative)

      by Sodium Attack ( 194559 ) on Wednesday September 18, 2002 @05:19PM (#4285108)
      It's not worth doing a patent search. Most of the larger companies do not.

      Well, I don't know what "most of the larger companies" do, but I can say that I work for a Fortune 500 company and we always do very intensive prior art searches. Why? Read on:

      Worst case, the patent office tells you about some prior art & you adjust your application to take it into account

      No, the worst case is that the patent office doesn't find the relevant prior art in its search either and grants your patent. (And we all know what a good job the patent office does on prior art searches, huh?) Your competitor does find the prior art, takes it to court and has your patent invalidated. When this happens, there's no refund on your thousands of dollars in filing fees. Your patent is then one very expensive piece of paper which confers absolutely no legal rights.

  • Re: (Score:2, Funny)

    by account_deleted ( 4530225 )
    Comment removed based on user account deletion
  • You can either file for the patent yourself or
    hire a lawyer. If you file yourself, buy a Nolo
    book and go. However, the trick with patents is
    not writing the bulk of it, but rather formulating
    the claims such that they would be difficult to
    circumvent. For this you might need a lawyer.
    If you do get a lawyer, remember that "filing" for
    a patent is only a part of it. You also need to
    file disclosure documents, i.e. what you know
    about prior art, and you also need a lawyer for
    the stage known as prosecution, i.e. for
    responding to office actions. Make sure your
    contract with your lawyer addresses these stages
    and seek another lawyer to review your contract
    with the first one. The price of $3,000 seems
    cheap but if your patent is simple and you are
    not in a major metropolitan area then maybe.
    $5,000-6,000 is more realistic for a simple
    patent. When I got my first patent, I thought
    some lawyers would work on contingency but they
    don't, not decent ones anyway.

  • If your idea is worthy of patenting... (Score:4, Informative)

    by thepoolguy ( 467704 ) on Wednesday September 18, 2002 @04:34PM (#4284760)
    Then a good patent attorney should provide more than the formating and submission of your patent. I have been granted several patents and have several pending. I've worked with several patent attorneys.

    Today, patents are pretty easy to get. Just look at all the fuss that is raised every time someone get a software or business model patented that looks obvious to most of the SlashDot readers. That should tell you a little something about the state of patent examination today. I belive that because of that, it's easy to get a patent, but much more difficult to have a defensible patent granted.

    By defensible, I mean if someone claims either prior art, after the patent has been granted or you try to enforce your rights as a patent holder against someone who is infringing. The civil litigation in cases such as these are before a jury of our peers. Not our technical peers, but the ordinary, not necessarily technical folk who inhabit our society. A patent needs to be written in such a way that it is easily understandable to this jury and the presiding judge. I believe a good patent attorney can greatly assist in writing a patent in such a way that it is understandable to lay people who may ultimately decide its fate.

    Additionally, there are many rules and arcana surrounding how a patent is written, the details of the legalese used and many other conventions that, as far as I know, are not really written down. Failing these small items can cause your patent to be rejected by the patent office on non-technical ground.

    That said, there are several reasons why one wants to patent an idea. You might just want to have a patent (it's cool!). The idea might be truly revolutionary and worthwhile in a business sense. You might want to patent additional small changes to build a patent fence around an existing strong patent. Each one of these has various costs associated with them.

    I view submitting patent applications as a business decision. There are many costs involved. Not the least being my own time to write and review the patent application, even with the patent attorney. The second cost is the cost of the patent attorney and the third cost is the cost of the patent application itsself. This final fee goes to the USPTO. There are additional fees when applying for international patents.

    In closing, if your idea is a good idea from a business point of view, meaning there is monetary value in having the patent granted, then the cost of having a good patent attorney should be a good investment.

    -tpg

    [disclaimer- I am not an attorney, nor do I play one. I just use them when I need their expertise.]

  • Don Lancaster's case against Patents (Score:3, Interesting)

    by jaoswald ( 63789 ) on Wednesday September 18, 2002 @05:04PM (#4284987) Homepage
    This [tinaja.com] is Don Lancaster's (author of Incredible Secret Money Machine) take on patents. He's a unique character, and sometimes off-the-mark, but you should consider carefully before rejecting his advice.

    He estimates the breakeven point for a patent is over 12 million in gross sales. His catch phrase is that it is useless to patent a mere million dollar idea.

  • MGM (Score:2)

    by sharkey ( 16670 )
    Give them a call. See if they tried to patent or copywright the Munchkins in any way.
  • Without a doubt the best guide to patenting without an attorney is the Nolo Press book by Pressman, Patent It Yourself [nolo.com], and it's attendent apparatus.

  • A few comments from a patent apprentice (Score:3, Insightful)

    by bezuwork's friend ( 589226 ) on Wednesday September 18, 2002 @05:22PM (#4285127)
    I worked previously in the USPTO and examined software inventions before the USPTO officially admitted it gave patents for software.

    I only saw one pro se (by one's self) application. The inventor had already gotten around 35 patents pro se. But ... they were in the games field - like frisbees and such. He was really out of his water in our area. I had to object to his claims (problems in wording and format) and reject them (there was prior art). This case was especially sad because the guy was disabled and could not afford a telephone - I might have been able to help him if we had talked. He was also a bit insulting at times to the examiners (If you go pro se, I recommend you don't do this - it has an unofficial detrimental effect on patentability of your invention). The situation was complicated as another firm had a patent on the invention although this guy had likely invented it earlier. During the prosecution of the application, he sent in some copyright documents to prove that he invented it earlier. That was a bad move as the documents predated his patent application by over a year. I had no choice - I had to reject him over his own publications.

    That said, if you can do it - it will save alot of money. Also, you will have the satisfaction of crafting your patent. However, no offense, but I gather from your post that you would be better off having some help. The many other posts mentioning the difficulty of the language, the strategy in the claims, the writing style, and so on are correct - it is an arcane profession which takes time (years) to learn satisfactorily.

    Regarding the prices you quoted - $450 for a search and up to $6,000 for the application (finished and filed, I assume) - these seem on point, even rather low by the standards I am familiar with.

    I would suggest you try and see the quality of the work of the lawyers you checked with - go to the USPTO full text patent search page and enter the query "lrep/xxx" where xxx is the attorney's firm name or personal name. You have to play around, especially with personal names. For example, if the attorney is named Joe P. Waller, the patent will list him as "Waller; Joe P." (with the ";"), but the "P" might be left out or he might use Joseph, etc. Find a patent or two and read them for technological competency, claim completeness, etc.

    As a start, a search is good to ensure that your invention was not already patented. If your invention was already patented - then you will save alot of money and time which would be lost otherwise. Furthermore, you can learn to do your own searching. I worked for a searhing firm for a while. They took all kinds of people (with degrees, without degrees, etc.) and had them producing searches for paying clients by the second or third day. I did see alot of shenanigans going on - but you get the idea that searching isn't too difficult to pick up.

    Somewhat offtopic - the USPTO has a large public search room in Crystal City, VA (near the pentagon, somewhat). If your work is such that you will be patenting things now and again, then the search room is worth a visit just to see it. It has 100s of feet of narrow (3') corridors lined on each side floor to ceiling with metal bins holding paper patent copies. It is a strange sight - and one which is soon to disapear as the USPTO is trying to destroy the paper copies and go completely electronic. I believe the EFF or ACLU has filed a suit against the USPTO asking for an injunction that the patents not be destroyed until the electronic search engine is working better.

    I remember seeing something about open software patenting in old Slashdot posts - someone offered to provide services in searching and writing - maybe two or three years ago? I emailed the poster at the time and offered my services, but never heard back. I am curious whether Slashdot reading practitioners would be willing to help out. Too bad we couldn't have open source patent drafting - working together to protect open source inventions. But for reasons relating to competition and confidentiality, this wouldn't work.

    Good luck, let us know what you decide.

  • Success as an inventor (Score:5, Informative)

    by Animats ( 122034 ) on Wednesday September 18, 2002 @05:38PM (#4285218) Homepage
    I hold three software patents as an individual, and get substantial income from two of them. So here are some brief notes from someone who's done it.

    The first question is, how good is your idea? Does it solve a problem that people need solved? What's your next step after the patent is filed? Is it time to head out to 3000 Sand Hill Road and talk to the venture capitalists, or are you thinking of writing letters to manufacturers in hopes of a reply? Is there a business in this? How big a business? Can you get a piece of that business?

    My patents are in areas where others had tried and failed to solve some problem, and there existed literature (and failed products) to demonstrate this. If you have something like that, getting a patent is relatively easy, and it's likely to be worth something.

    Patenting your "idea" is easy, but probably pointless. I always had to bring things up to the point where I had a shrinkwrapped product before money came in. (In some cases, the shrinkwrapping was done at a local copy shop. But the box looked good. And the software inside worked.) A killer demo may be sufficient for some ideas. But an untried paper idea has to be really, really good to be worth anything.

    Get and read the Nolo books. Even if you're going to use a lawyer, you need to understand the patent process thoroughly.

    Find a lawyer you get along with. They have to understand what you've done. Here in Silicon Valley, there are plenty of patent lawyers, and legal business is slow right now. Get a price quote for the whole job before you start.

    If you can't write well, it's going to cost you more. I always write my own specifications and let the lawyer review them. The lawyer writes the claims, which I then review. Claim drafting is a technical subject, but you need to understand it well enough to comprehend what is and isn't infringement.

    Find out what word processing software your patent attorney uses. You're going to be sending documents back and forth, and you need compatibility. This also applies to drawings.

    Forget "invention brokers". The whole "invention broker" industry is a scam. In Silicon Valley, where almost anybody who's any good technically has a patent or two, there are no invention brokers. Now that invention brokers are required by Federal law to disclose their success rates (which are around 0.01%) up front, that scam is dying.

  • Just do it (Score:5, Funny)

    by ocbwilg ( 259828 ) on Wednesday September 18, 2002 @05:53PM (#4285276)
    Just file your patent. Worry about prior art and all that other stuff later. That's what everybody else does...

  • Negociate the price (Score:3, Insightful)

    by virve ( 63803 ) on Thursday September 19, 2002 @03:59AM (#4287388)
    What I would do and have done is to do my homework very thoroughly. Repeat your prior art search with wellthought out searches. Be very careful that you cover all relevant technical terms and beware that the terms used in patent documents can be very different from the terms used by people in your field. Write down the reasoning behind your searches on paper so that you and a patent attorney or examiner can understand that what you have done is correct. Put the time and effort into understanding patent classification systems. They are complicated but will help your search greatly. Identify aspects of your invention and classify them and search with terms and classes "diagonally", i.e. if your invention pertains to a razor mounted on a bicycle then search in the razor classes with the word bicycle and the other way around. Do this in both the USPTO and EPO systems (Espacenet).

    Then you will end up with a pile of print-outs of patents that might or might not be relevant. Go through them one by one making sure that you understand them. For two reasons: Firstly, to find out if your invention is really new and what you actually invented. Secondly, because these patents are a good source of inspiration. You will discover new aspects of your invention that you will want to cover in your claims. You will also find out that there are patents that cannot be understood - period. I don't know what to do about them. Write a complete document to yourself and any patent people explaining why each of the existing patents are not in conflict with your invention. Remember to check in INPADOC what the status of the patents are if possible. Consider what discontinued applications can mean for your invention.

    Now you have ammonition. Write up a set of draft claims modelled on the best and broadest of the patents you have read. Make sure that you realize that formulating claims is work for experts.

    Write a detailed description of your invention covering every aspect that you can think of and that you have touched upon in your draft claims. Make the best drawings and the clearest text you can at all.

    Clear your head for a week. Reread the text you have compiled and start negociating prices with patent people. Show them that you have done a lot of the tedious work for them and make sure that you get a significant discount.

    I learned that just having the searches and then relevant patents printed out saved me a bundle. The attorney used Derwent to print out patents and that cost a part from time also $5 a patent. I had printed out the patents from the web for free from USPTO and Espacenet (+JPO). I cannot overemphasize the importance of doing a systematic search and documenting it. I decided to redo several days of work in a systematic fashion and got much more convincing results. Checking the references and examined documents in other patents is also very effective.

    You can do a good job yourself but I would never trust myself to write the final claims myself.

    virve
    --

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