In talking with a client last week, we got on one of our favorite topics: almost nobody has the big picture in mind when it comes to patent protection.
The client was a CEO of a small company with a little revenue and a couple of very broad and early patents in their rapidly developing field. His biggest complaint is that most of the patent and legal experts know their specialty, but cannot integrate it into a cohesive business plan.
This post on Don Marti’s blog is rather interesting. Mr. Marti, a member of the Silicon Valley Linux Users Group, proposes that all prior art be stored away until someone attempts to enforce a software patent (and spends a bunch of money doing so). Then, all the prior art will be dusted off and shown the light of day in a countersuit of invalidity. This is in stark contrast with Matt Buchanan’s post suggesting the opposite.
The reason for Mr. Marti’s action is to undermine every single software patent that is asserted against someone else.
While this strategy is intellectually interesting, it does have a couple flaws.
Professor Ed Felton has an excellent post on patent holding companies. I just recently started reading his blog, Freedom to Tinker, and enjoy everything I have read.
One of my earlier posts about the ignorance of copyright protection on the ideas embedded in software generated a couple of comments, albeit anonymous comments.
I will take another stab at this.
The Patent Pending Blog has a great post on the chances of success for independent inventors. The bottom line: 5% or so of the independent inventors that Bob Shaver sees actually winds up making money off of their patents.
This is why the first piece of advice for all independent inventors, especially first timers, is to do a business plan before spending money on a patent.
What I suggest is writing a business plan for a large company in the market that might like to license the invention. This hypothetical company needs to see a definable advantage to the product in their marketplace with their margins.
Using prior art patents as fodder for new designs is one way the patent system encourages and stimulates innovation. Educating the engineer on how to use the system to his or her advantage is not terribly difficult, but is rarely done.
Engineers tend to have little use for issued patents. From their standpoint, many patents are obscure, badly written legalese that serves only to grant the inventor another plaque and a check for $1000.
I am on the mailing list for FFII, one of the groups that voraciously fights for the end of “software patents.” I am afraid that I don’t understand the hype.
Software developers, as a community, tend to be pretty liberal in sharing their ideas. It is good software practice to write code that can be reused. After solving a problem once, it is good practice to create one or more reusable routines to perform the function. In fact, reusable code is the hallmark of good practice.
In the US, statute requires that the inventor(s) be identified on each patent application. Improper inventorship, especially when done with deceptive intention, can invalidate a patent.
A patent is a basic contract between the public (acting as the government) and the inventor. The inventor fully discloses his trade secret in exchange for a limited right.
The fundamental purpose of the patent system is to get the inventor’s secret information into the hands of the public. The theory is that the public will design around the invention and develop new solutions. This is how the patent system is supposed to help innovation.
