Why Software Patents Make Sense

Software is patentable subject matter in the United States. There are some restrictions, such as that the software must be embodied in a machine, but software inventions are regularly given patent protection. However, there is strong opposition to protecting software inventions, and many countries, particularly European Union nations, do not allow the patenting of software inventions.

The opposition to software patents is based on a number of good arguments including that patents stifle innovation and competition, that many over broad and obvious patents were granted, and that the United States Patent and Trademark Office (USPTO) doesn't have the necessary expertise to evaluate software inventions. There is some truth to these arguments, but protecting software innovation is more important than ever because so much economic growth and innovation is centered in software products.

It is true that software patents stifle innovation and competition. That is the objective of any patent, to give the inventor the right to exclude others from practicing her invention. All modern societies give these innovation-discouraging non-competitive rights to inventors for one reason - it encourages more innovation than it discourages.

Invention is a difficult, time-consuming, and expensive process. It is simply hard to get something new to work in a useful way. In contrast, copying an invention is easy, quick, and cheap. Without patents, there would be little incentive to innovate because copying is so much easier. We see this today in countries with weak patent protection - copying is far more popular than innovating.

However, bad patents can stifle innovation. A bad patent is generally over broad, protecting far more than the inventor invented. An over broad patent can stop all innovation in a large technology segment by giving one inventor all rights to a very general solution, even though the inventor never developed or even considered all of the solutions that are covered in her patent claims.

Unfortunately, there are a disproportionate number of overboard patents for software inventions. One reason for this is that so much of our software technology is of recent invention. We are close to the Big Bang of software innovation, so many core software concepts are still covered by patents. For example, the explosive growth of the internet is still within the twenty year term of a patent, so many basic software innovations like one-click ordering are protected by patents. This is similar to the early days of the automotive industry when patents covered most basic automotive technologies like steering wheels and drive trains.

As a result, programmers can infringe patents using relatively basic design principles. In contrast, the core innovations of older technologies such as electronic logic or engine design are not longer protected by patents, so basic design principles can be employed without violating patents.

Bad patents are often granted for very obvious inventions. Patents should be awarded for doing something new and non-obvious, and not for being the first to file an application for a predictable, obvious solution. Unfortunately, the USPTO had to meet a very high standard to show obviousness when many applications for software inventions were examined. As a result, patents were issued for some relatively obvious inventions. Since then the standards for showing obviousness have been relaxed, making it much harder to patent an obvious solution. Older patents can also be reexamined using the new obviousness standard, reducing the chances that patent holders will try to assert questionable patents.

Some bad patents were also issued because the USPTO simply wasn't staffed with examiners with the right expertise to evaluate the explosion of software applications. However, the USPTO has done a good job of adding and training examiners with software expertise. As a result, the examination of software applications has steadily improved, with fewer bad software patents being issued.

While much of the criticism of software patents is valid, protection for software inventions is increasingly important for innovation and economic growth. The factors that created the large number of innovation stifling bad software patents are diminishing as more basic software technology enters the public domain, changes in patent law reduce obvious patents, and the USPTO becomes adept at examining software inventions. The problems and abuses are being corrected.

At the same time the importance of software inventions to innovation and competitiveness is growing. Programmers are solving real problems with inventive, non-obvious software solutions. They should be encouraged by being allowed to patent their inventions. It would be wrong to deny protection for software inventions because they are inventions. And it would be foolish, because the creation of software is a vital economic activity where innovation should be encouraged and protected. Software patents are more important than ever because software innovation is more important than ever.

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8 Types of Patents

Is my idea patentable?

A lot of new inventors are doubtful that their idea is eligible for a patent. They shouldn't. Even the most unlikely of ideas pass through the patent office every day.

For example, Patent Number 5443036: Method of Exercising a Cat

This inventor patented, "A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct."

Basically, he patented pointing a laser beam at a wall for the amusement of his cat. Valid, groundbreaking and life-changing...not so much. Patentable nonetheless.

So what makes the difference? What kinds of ideas can be patented? And what can't?

Today, you'll learn the difference.

Patents - "Anything under the sun made by the hand of man..."

The general rule of patents is that they must be created by man. That's a pretty broad statement, so let's take a look at a short list with explanations.

1. Mechanical devices and articles of manufacture - The dictionary defines a mechanical device as "a mechanism consisting of a device that works on mechanical principles". Pretty creative, huh? Anyways, if you can make a machine that is new and useful, you can patent it.

2. Processes - A process is simply a way of doing things. If you can make a better process for doing something, you have a good candidate for a patent.

3. Chemical compositions - Many new drugs fall under this category. Arranging chemicals to solve problems and then patenting them is a multi-billion dollar industry.

4. Computer programs - Amazon.com practically cornered the market when it patented the 1-Click ordering system. Since it owns the patent, no other website can use their proprietary system without paying a royalty and obtaining permission first.

5. Genetic organisms - This is a neat one and still up for debate in this new era of uncoding DNA.

6. Improvements - Do you have to have a brand new idea to get a patent? If not, do not despair. The vast majority of patents are for existing ideas that are improved.

7. Designs (Design Patent - surface ornamentation) - Keeping with the improvement theme, you don't actually have to make something better to get a patent. You just have to make it look different.

8. Asexually reproduced plants (Plant Patent) - For the botanist/inventor in you.

That's about it. That seems like it covers everything, but there are a few exceptions. For example you can't patent:

-- Laws of nature (E=MC2)

-- Physical phenomena (gravity)

-- Abstract ideas

-- Inventions which are not useful or not operable (such as perpetual motion machines)

And of course if someone else owns your idea already, you can't patent it (that's why it's always a good idea to do a patent search before undertaking the journey to get a patent).

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Patent Law Philosophy

Running a think tank is a very interesting profession and it's something I do in my retirement. One thing I have noticed about entrepreneurs with inventions, innovations, ideas, and new concepts is they often don't want to talk about them, as they are afraid someone else might steal their idea. I guess I can understand that, as I have a ton of new ideas, and original thoughts every month. Still, it should be known that just because you have an idea doesn't mean someone else hasn't already had that same idea, and that someone else doesn't already have a patent on it.

Let's talk a little bit about patent philosophy, and where I'm coming from on my comments here; you see, generally an inventor will ask me to sign a non-compete or nondisclosure agreement on their idea, however over the years I've stopped doing this for a couple of reasons. Generally, I sign their nondisclosure agreement, only to find out their idea is something I've already had, or considered decades ago, and have probably even written an article on it, or their idea and innovation has already been patented, often by more than one group, company, or individual inventor.

In other words, they had me sign a nondisclosure agreement before they even did a patent search, or even pulled up Google Patents online search feature to see if their idea had already been taken. The other day an inventor came to me and said they had this great idea, and he told me it was wonderful, and all that jazz, and it would revolutionize five different industries. So finally I gave in and I agreed to a nondisclosure agreement in an e-mail. Then when they told me of their idea, I just shook my head for them wasting my time.

You see, I went to Google Patent search, and I pulled up 15 patents which were very similar to their idea, and then e-mailed them all the links. And then they told me; "oh well, I should've known better," and I'd say to that, yes they should have, or they should've looked first, before wasting anyone else's time. One thing I find is that we have a problem with communication when everyone is running around trying to keep a secret, especially when - it's not even a secret at all. Further, most of these inventors are never going to do anything with their idea anyway, and even if they were, they don't even know how to get started.

Lastly, a good number of these inventors and innovators are completely broke, they sit around thinking all day, and they've never done anything or collected enough money to make good on any of their ideas or concepts. It's hard to say who is to blame. Is it the patent office for making things too difficult, although with Google patent search, that seems to be an old problem which is really no longer relevant. Maybe the problem is that too many patents are being awarded for ideas, rather than prototypes.

Indeed, I ask that you please consider all this and think on it, and realize this is just patent law philosophy 101. Yes, you should probably have an inventor's book, and write in it appropriately with dates, and no spaces between the pages. And if you find you have a great invention which no one has ever thought of before, you should probably file for a patent, and get the ball rolling, and have people sign nondisclosure agreements. But do your homework, don't waste other people's time, or expect them to do your homework for you. And if you are really serious, contact a decent patent attorney and do it right. I hope you will please consider all this.

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Golfer Reveals 2 Quick Patent Tips for Inventors

If you can't sell your idea, then there's no reason in getting it protected with a patent, right?

Therefore, before you spend a lot of time, money and effort going through the patent process...you should consider how marketable your product is. How willing people are to buy your idea from you.

The good news is there is a simple two-step formula for maximizing the marketability (and therefore profitability) of your idea.

This formula saves time...and...lessens your initial investment.

Here's a quick story that goes a long way to illustrate this simple formula for uncovering patentable and profitable niches in the market.

Patent Lessons from a Golfer

I just finished reading a short article on South Carolina golfer and inventor Michael Owens. Owens has a patent pending on a device that securely holds personal golf GPS devices and laser range-finders in place on golf carts.

The device that holds the GPS on golf carts only took him several months to create, test and refine. With an outstanding order of 1,200 units at $29.95 each, Owens will just about cover his initial $45,000 investment.

Less than a year and already his idea is paying off. In terms of bringing an idea to market, that's almost lightening speed!

The Easier Path to Patents

The inventor trick Owens used to quickly create a profitable invention is simply finding a better way to use an already wildly successful product.

Here's how he did it...

First, Owens found a product that people are already using.

If you are a golfer, you already know GPS units and laser range-finders are all the rage on the links. By linking his product to something that people use and are familiar with, Owens greatly increased his chances of patenting a marketable product.

Second, find a way to make that product easier to use.

In this case, Owen saw his friends fumbling with the GPS units in their pockets, in cart cup-holders, seats or open spaces in the dashboard area. By creating a sturdy magnet-based GPS holder - that also didn't need to be removed constantly - Owens took a great product and made it better.

And if his patent application goes through, he will have the right to prevent anyone else from making, using, or selling his idea. A legal monopoly that he can charge a royalty percentage or outright sell to a bigger company.

Keep these two points in mind next time you are working on your next big idea.

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Hiring a Provisional Patent

A provisional lawyer is sort of like acquiring a placeholder. The provisional lawyer is definitely an initial lawyer, that's much like a normal lawyer and it is susceptible to most violation laws and regulations,but it won't are a typical patent with the patent privileges before the applicant takes additional steps. The U.S. Patent Office has high rules regarding provisional patents and will not give a provisional patent unless of course it meets U.S. Patent Office needs.

A provisional lawyer isn't the same factor as pending, even though it is comparable and once more falls under most of the same lawyer violation laws and regulations. lawyers recommend declaring a provisional lawyer first oftentimes when preferred includes a high probability of becoming another person's excellent idea. It's all dependent on timing with lots of lawyers.

A lawyer can completely explain all of the particulars from a provisional patent along with a regular patent. A lawyer may also see whether a patent applicant is much better offered declaring a provisional lawter first. It's not forever in someone's welfare to file for any provisional patent using the U.S. Patent Office. In instances where it's unclear what's going to best serve the inventor, a patent lawyer is extremely suggested.

A provisional lawyer is just great for twelve months following the filing date, and perhaps can really become harmful towards the inventor. You will find laws and regulations regarding patent violation that are quite complicated and need a patent lawyer to interpret them, that need a patent application to provide a concept that's completely novel and original.

Not every nations stick to the same violation laws and regulations along with a provisional lawyer could possibly permit the leakage of knowledge far too early for novel ideas which are destined for extreme recognition. Again, comprehending the how to go about patent violation law requires a well-established patent lawyer and should not be second suspected by a person inventor who may accidentally be jeopardizing their bread and butter with different misinterpretation of patent violation law.

A patent lawyer can explain the variance in the significance of filing dates for any provisional lawyer which could play a vital role within the effective transition from the provisional lawyer to some non-provisional lawyer. An easy lapse in timing can definitely produce a loss for that patent filer. The U.S. Patent Office governs itself with a very strict group of rules which will probably frustrate could be very first time patent holder.

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Key Software Patent Details

Software inventions are no harder to patent then other types of innovations. However, many software patents are often only allowed after significantly narrowing the scope of the claims, resulting in patents that offer much less protection and that may be easily engineered around. This is not because software inventions are less patentable. Instead narrow software patent claims often result from a lack of structural detail in the software patent application.

Just as patent applications for mechanical inventions that arrange well-known elements such as supports or tubes in a unique structure are regularly allowed, software inventions that organize basic software elements in unique structures are also patentable. However, the key inventive structural details of innovation must be carefully described and claimed in order to secure broad patent coverage. These key inventive structural details include algorithm descriptions, data structure descriptions, and interface descriptions.

Algorithms and rule descriptions are often critical in distinguishing the structure of a software invention. The description of an algorithm or rule should include multiple levels of detail with multiple embodiments of implementation. For example, an algorithm that determines when to perform a key function should include a high level written description of the conditions for performance, two or more written refinements that further modify the conditions of performance, and several embodiments of equations or logical statements that should how the algorithm can be explicitly implemented.

Data structure descriptions must include much more information than simply that key data is stored. The details of the data structure should include structural details such as specific data fields and a description of the data stored in those fields, relationship details between data values that are stored in the data structure, and functional details of how the data is employed. For example, a description may include the details of each data field, algorithms for deriving one data value from other values, and the algorithms that employ the data values.

Interface descriptions may be the most important inventive elements to protect. Unlike algorithms and data structures, interfaces with software and/or hardware elements are much more easily observed for evidence of infringement. One should carefully describe and claim the unique data elements and functions employed by an interface. For example, a software interface to a database engine should describe the key variables that are passed through the interface, the functional results of the variables, and the order and conditions of key handshaking exchanges.

By describing the details of algorithms, data structures, and interfaces, a software patent application will typically include enough information to broadly claim the invention while distinguishing it from dissimilar innovations. As a result, your software innovation and competitive advantage can be protected from copying.

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