Dealing with rejection is part of the patent process.

The Examiner is not rejecting you or your invention. The Examiner is just the way you claim your invention, so do not take the rejection personally. At the end of every patent is a numbered list of sentences/paragraphs called claims. The claims describe what part of the invention you claim is your intellectual property. A claim defines exactly what the inventor owns (like a fence around a piece of property) and lets others know when they are trespassing on your intellectual property.

The art of the deal.

The patent process is a negotiation. Typically, patent attorneys initially file claims that are broader than what the actual invention covers to reach for as broad of coverage for your invention as reasonably possible. The examiner will almost always reject the first set of claims and then work with the attorney to find reasonable middle ground.

The Examiner will identify and apply the relevant prior art references (inventions available in the public domain before your patent application was filed) to each of the features of the claims in your patent application as part of the Office action. The Examiner will detail why the Examiner believes the features in the claims are found in the cited prior art. Do not take it personally. Once an Office action has been received, it is now up to you/your patent attorney to respond in one of two ways:

Argue why your invention is different.

If the Examiner is mischaracterizing the prior art, interpreting it incorrectly or too broadly, or is otherwise misapplying the prior art references, you can argue how certain claim limitations/features are not found in the cited prior art reference. The Examiner will then review your arguments and either agree with them and find new references, agree with them and allow the patent application, or disagree with the arguments and maintain the rejections.

Clarify the features of the claim (Amendments).

In addition or as an alternative to making arguments, you may also amend or adjust your claims clarify your invention. The adjustments may include limiting the scope of your invention or adding in new features to your claims that are not disclosed or suggested in the cited prior art references.

Convincing is the Key

The goal of the Office action response is to convince the Examiner to allow your claims through a combination of claim amendments and skillful arguments that point out how certain claim recitations are absent in the cited prior art. It may take more than one response to different Office actions to reach the middle ground where your patent application may be allowed, but typically if you persevere you can reach the acceptable middle ground to get your patent application allowed.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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How long & how much to get a patent?

The short answer is it takes about 22-30 months and costs about $12,000-$14,000. Before you abandon all hope, read below to find out more about the patent process. According to the United States Patent and Trademark Office (USPTO), the average time it takes to get a patent is about 25 months. If you want to expedite the process you can pay an extra fee ($1000-$4000) to the USPTO to get prioritized examination utility patents you can cut the time down to 6 to 12 months. A good patent attorney can help you with the process from start to finish, including:

Patent Searching & Analysis (1-2 WEEKS & $500)

This step is optional, but it can help you understand what other inventions are out there, what may be novel/unique about your invention and if you may be infringing some else's patent.

Prepare a Patent Application (2-4 Weeks and $5500)

If the patent search turns up nothing, you're ready to draft a patent application. It usually takes an attorney 2 to 4 weeks depending on the attorney's workload, the complexity of the invention, how much information is provided from the applicant, and any changes necessary.

Office Actions (18 MONTHS & $3500-$5000)

An office action is a rejection from the patent office indicating that your patent is not patentable because it is not novel or is obvious compared to previous inventions. As life is full of rejections, don't get too worried if your patent application gets rejected. Typically a patent application gets 2-3 Office actions before it gets allowed. This is because the Examiner at the USPTO may require you to identifying how your invention is different, clarify the scope of your invention, and/or change how many inventive features you are claiming. Each Office action you takes 2-3 months to receive from the Examiner and 1 month to respond.

Abandonment or Allowance (3 months & $0-$800))

After you have gone a few rounds with the Office action you typically get a pretty good idea if your patent application will be allowable you should be abandoned. If you abandoned your patent application, it doesn't cost you anything. If your patent application gets allowed, it usually takes a couple months once you get the notice and cost about $800.

Maintenance Fees (3.5 years/$800 - 7.5 years/$1800 - 11.5 years/$3,700)

If your patent application gets allowed and issue into a patent, then the USPTO charges maintenance fees for up to 11.5 years after issues if you want to keep your patent active. You pay the first fee of $800 at 3.5 years after the patent issues, the second fee of $1800 at 7.5 years, and the third fee of $3,700 at 11.5 years. Depending on the patent and the invention you may decide to keep the patent active the entire length of the patent or let it go abandon once it is no longer valuable.

Why does it take so long and cost so much?

At any given time, the USPTO has hundreds of thousands of patent applications being examined. In 2012, 542,815 applications were filed. As of 2014, there were only 7,966 examiners and a backlog of 604,692 patent applications. With the amount of examination required, this causes longer wait times. High-traffic fields such as computer software have even longer wait times. Also, some applicants will fight the USPTO's decision, further slowing the process. Patents are expensive. Depending on the invention and the business they can be a great investment or a waste of time and money. To help you understand if a patent is right for your business/invention, talk to an experienced patent attorney.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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Inventors and entrepreneurs who are looking to cut costs often want to do their own patent search.

Doing an initial patent can be a great use of time to determine what other relevant inventions are out there. However, inventors need to be careful. It is common for inventors to do a patent search and find nothing even when there are things would be found by a patent attorney. While it makes sense to do your own initial search first, be careful relying solely on your own search when spending thousands of dollars to ultimately obtain a patent. This article should not be interpreted as recommending that inventors forgo a professional patent search. There is no comparison between a patent search done by an inventor and a patent search done by a patent attorney.

REASONS TO DO YOU OWN SEARCH

THERE ARE THREE MAIN REASONS WHY AN INVENTOR SHOULD SPEND TIME SEARCHING AT PRIOR ART: (1) by spending time patent searching you will become familiar with the prior art. (2) patent searches help you identify invention already out in the public domain so you can focus on what makes your invention unique. (3) if you can find something that is too close on your own invention, you save time and money by moving on to your invention/project.

If you are going to do your own searching and find relevant patents, you will need a basis understanding of patent searching and the resources available for searching. The United States Patent and Trademark Office (USPTO) patent search page is a great place to start. You can easily find a lot of free information at the USPTO patent search page. The USPTO website also includes an excellent Help Section to learn how to use the online search features. Below are some patent searching strategies and some free resources to help you with your search.

Free Patents Online

Free Patents Online is faster and often provides better search results than the USPTO site. Often you can do an initial search using the USPTO patent search engine and then go to Free Patents Online to download PDFs of your results and to access related patents. Using the advantages of both the USPTO and Free Patents Online sites can make your searching easier and more robust.

Google Patent Search

Google Patent Search has a user-friendly interface that makes it each to do patent searching. Some of the searching field available are limited compared to the USPTO and Free Patents Online tools but if you are looking to do a broad search then Google Patent Search is hard to beat.

If you want to do more specific searches with specific limitations then use the USPTO and Free Patents Online tools. Note, the most recent patents are not always available on Google Patent Search. The Google database covers patents that are issued all the way back to US Patent No. 1 but there can be a short lag in the most recent published patent applications and what is available in the Google Patent Search database.

Advanced Search Page

When using the USPTO searching tools, using the Advanced Search Page and searching in the specification fields can improve your search results. Want to search for titanium golf clubs in the specification of a patent? Use the search term SPEC/”titanium golf clubs”. Note, the USPTO searching tools only allow for doing full text searching back to 1976. If you are in the high-tech industry this is likely not an issue, but for mechanical or simple inventions you may want to use Google Patent Search to go back farther than 1976. Depending on the type of invention and the search terms used, a patent search may yield hundreds or even thousands of related patents. If, for example, you search “SPEC/shoes”, you will find hundreds of patents that use this word in the specification. What should you do now? If you find too many patents in your initial search then revised the search terms you are using and/or add additional search terms to narrow your search. When you have 40 or less results then it is worthwhile spending a couple minutes per result to review the patents/patent applications. The key is to start off broad and then narrow your search to get relevant results.

Choose your words carefully

When doing a patent search using any of the free tools, what you are really doing is a keyword search. When you only get 10 search results for “titanium golf clubs,” it may be because that isn’t the common or proper way that patent attorneys that particular feature set. Maybe the correct keyword is "metal golf clubs" or "Ti golf clubs". Make sure not to focus on a single keyword when describing your invention that overlooks other possibilities.

Along the way, as you find relevant patents/patent applications, keep track of the numbers and identify the US classification that relates to the type of invention you are searching. You can narrow broad searches using the one or more classifications at the Advanced Search Page of the USPTO patent search tool.

Patent Classifications

For example, the classification 273/173 seems relevant to the area of materials used for golf club heads. Patents within this classification are potentially highly relevant to your invention. You can narrow your search from hundreds or thousand of results to just a few results if you search “CCL/273/173 and SPEC/titanium golf club head”. Becoming familiar with the intricacies of patent searching takes time. There are a number of fields that are searchable through the Advanced Search Page, which provides you a number of different ways to search for an invention. It is not uncommon for inventors to do a search and find nothing. Every time I do a patent search I find patents/patent applications that were missed by the inventor. Sometimes the patents are tangentially related. Other times the patents are close or exactly what the inventor has invented.

Class isn't everything

While the classification system is helpful, only after you have a broad idea of all possible descriptions can you meaningfully use the classification system. The reason inventors often do not find the most relevant patents is because they fail to follow up abroad search with a classification search.

Remember that it is critically important to figure out what terms used to call different things are called. You need to use different names and labels. Is it a pencil, a pen, a writing utensil, a writing tool, a drawing apparatus, or something else? You will find that patent attorneys typically call certain features by a select few names. Once you figure out what the industry calls something, you are far more likely to find relevant patents. With these resources and basic strategies, you are now ready to do you first patent search, but remember that there is no substitute for having a patent attorney do a search to better identify relevant results help you understand the patent field for your invention.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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The open source movement started as a simple idea back in 1998 in the digital mecca of Palo Alto, California.

From there it grew and evolved into a manifesto.

The Manifesto

Whatever you do or make, give it away for free so others can build with it and make it better. Proponents of open source argue that by giving ideas, products, and code away it drives innovations by means of global collaboration, which is good for any industry

Tesla Motors

A prime example of open source is what Tesla Motors did in 2014. The electric car pioneer decided it was in the best interest of the electric car industry to release all their patents to the public. “Tesla Motors was created to accelerate the advent of sustainable transport. If we clear a path to the creation of compelling electric vehicles, but then lay intellectual property landmines behind us to inhibit others, we are acting in a manner contrary to that goal. Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.”

Collaboration or Competition

Some disagree with the open source movement. They argue that competition, not collaboration, drives innovation. It was competition that sparked the space race and put a man on the moon. While open source might be good for the industry, it’s bad for business. When the ideas of a business are protected it can leverage those ideas to grow. If those software is open sourced, the rules of supply and demand make it hard to profit from those innovations. The battle of patents versus open source is likely to continue for a long time. Progress and innovation are the ultimate goals for both sides. Both sides just have polarizing ideologies.

Control

A patent gives its holder the right to exclude others from making, using, and selling the claimed invention. Patent rights give a patent holder control over who uses his/her invention. The basic idea behind distributing software under an Open Source license is that anyone should be able to view and use the source code of the computer program and modify the source code for his/her own purposes. The author of the software program must decide to make the source code available to others. Anyone can modify the source code without obtaining permission from the author. Distributing software under an Open Source license affects how the creator of the software use his patent rights but does not affect whether he/she can apply for patent protection. Releasing software under an open source license or incorporating the software in a proprietary product may grant certain patent licenses to people who receive the software. The patent owner cannot control who receiver the open source software or what they will do with it.

Defining an Open Source License

You can see the large number of different versions identified as open source licenses at http://www.opensource.org/licenses, each has its own quirks. One of the most popular open source licenses is the Gnu Public License (the GPL). For a copy of the GPL license you can go to http://www.gnu.org/copyleft/gpl.html. What is an open source license? The GPL not only requires that source code be viewable and usable but also requires that any software that is a derivative work of the GPL software also be distributed under the GPL. When an original author releases his software under the GPL, he give license of his copyrights to those who receive the software to copy, distribute, and produce derivative works of the software, provided that they then release the software and derivative works of the software under the GPL to make the source code of the software and the derivative works available to others. Derivative works are modifications of the software and as any software that links to the GPL software. The GPL software infects all software that links to it and forces that software also to be distributed under the GPL. Most commercial software developers do not use GPL software because doing so would force distribution of their own source code for commercial product they are selling.

Obtain Patent for Open Source Software?

If a company plans to distribute its software under the GPL, does it make sense to obtain patent protection? Open Source licenses do not bar a software author from obtaining patent protection nor does the GPL bar a programmer from including his patented features when he modifies someone else’s software previously distributed under the GPL. The uses to which patent rights can be enforced are severely restricted when the software with the patented innovations distributed under the GPL. The GPL license states: “Any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone’s free use or not licensed at all.” An author or modifier who distributes software under the GPL cannot assert his patent rights against subsequent users and redistributors of the GPL software. Why then, would anyone want to obtain a patent on an invention that is going to be distributed under the GPL? The author may plan to license the patent to others to produce a revenue stream. The author may want to assert his patent rights against redistributors who do not conform to the GPL license terms. The author may want to have patent rights to use as an offensive or defensive weapon against infringers who are not using the GPL software. The author may plan to also distribute a non-GPL version of the software. While the author may not be able to use his patent rights against people who receive and redistribute his GPL software, the author can use these rights against his competitor who sells a competing product that incorporates the invention that is not a derivative work of the author’s original code. The GPL only precludes the patent holder from asserting his rights against people who are practicing the invention by using his GPL software. People who independently create other software are not subject to this implied license.

Existing Licenses

What if the original author has a license from a third party for an invention included in the GPL software. For example, the original author may release software that incorporates an encryption technology covered by a patent licensed from a third party. If the original author of the GPL software has been granted the right to sublicense, he may be able to include the patented technology in his GPL software, since he can give a sublicense to the GPL users. Existing open source licenses Per the GPL requirements: "If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."

Limited Implied License

The users and modifiers of GPL software have an implied license to use patented inventions included in the GPL software. The users probably do not have a blanket license to use the invention in other circumstances. If a programmer who uses GPL software develops software that uses the patented invention without using any of the GPL software, the programmer does not have a license to use the invention in this manner.

Outside the US

Foreign Patents

Patents are granted on a country-by-country basis. The GPL states: "If the distribution and/or use of the Program are restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded."

Wrap Up

As of the date of this article, there are no decided court cases interpreting the GPL and all disputes involving the GPL of which this author is aware have been settled out of court. However, it is only a matter of time before court cases involving the GPL make it through court. Software developers and corporate counsel should be aware of the risks involved in the GPL before making decisions concerning this license.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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When you have a great idea, the very first thing you need to do is protect your idea before someone steals it, right?

If you base your decision on TV shows or most patent firm websites, the answer is a resounding "Yes!"

AN IDEA IS AN OPPORTUNITY

You are far better to base your decision on business sense. When you first have an idea the answer to whether you should get is often "No--but maybe later." Patents are valuable tools, but they are not you single ticket to success. Before you invest thousands of dollars in securing patents, there are several steps you should take to ensure that it's a smart business move.

VIABILITY FOR OPPORTUNITY

As a small business owner in addition to a patent attorney, I've filed for patents for most of my products. However, filing for a patent shouldn't be your first to starting a business. So what should your first step be, then? Before you move forward with a patent, first evaluate your idea to determine if it is a viable business opportunity. You need to understand your product, your target market, and your competition the best you can. Don't just listen to your gut or feedback from friends or family. Do solid market research and map out your product development path. This may help you avoid spending the time, money and energy to secure a patent for your widget only to find out that there is no interest for it in the real-world marketplace. If it is a dead end, figure that out on the front end so you don't lose a significant amount of money. Before applying for a patent, consider the following factors:

Patent research

Make sure your idea isn't infringing on someone else's patent. Conduct a preliminary patent search. This step will help ensure that your idea hasn't already been patented. You can either hire a patent attorney to do the search or at a minimum go to Google Patents and do a search yourself.

Prototype

Develop a basic prototype to determine your product's functionality. A prototype ensures you have a close-to-final design when you do file for a patent. Making your product after you've filed a patent is difficult.

Market research

Define your market and determine how large it is. If you target market is too small, your product may not be commercially viable.

Cost to manufacture

Determine how much it will cost to manufacture your product. If it costs more to make than the market is willing to pay, your invention is just a money pit. Once you've determined there are no major roadblocks to success, then it is time to consider whether or not you need a patent. Many products in the market aren't patented or even patentable. Depending on the product or business, you may need a trademark or a copyright instead of a patent, both of which can be more cost effective. A patent is an exclusive right granted by a government to a patent owner for a limited period to stop others from making, using, or selling the patented product without the permission of the patent owner. A patent (like other types of property) can be bought, sold, and licensed. So why wouldn't everyone get a patent? If you have unlimited time and money, then there is no downside to getting a patent. If you are like 99% of the world, you have a limited amount of both time and money. Here are a few benefits and drawbacks to getting a patent:

Benefits of patents Manufacturing and Sales

If you're planning to manufacture and sell your product yourself, a patent can help you justify your investment in design, production, and marketing. If you are manufacturing and selling your product yourself, a patent can give you a comfortable of lead time over those who might knock of" your product. The patent may also give you the peace of mind that your invention is protected by law and can be enforced if someone infringes on your rights.

Planning to License

If you're planning to manufacture and sell your product yourself, a patent can help you justify your investment in design, production, and marketing. If you are manufacturing and selling your product yourself, a patent can give you a comfortable of lead time over those who might knock of" your product. The patent may also give you the peace of mind that your invention is protected by law and can be enforced if someone infringes on your rights.

Drawbacks of patents Limited to your ability to enforce it

While a patent can never hurt you, your patent protection is limited to the extent that you are able to enforce your patent. There are no patent police out there to ensure that your idea isn't stolen. If someone infringes on your patent, you'll need to spend time and money on legal fees to enforce your patent.

Next Steps

Once you have evaluated the opportunity, weighed the pros and cons of a patent, and decided to go move forward, find an expert who can help you. While anyone can technically write a patent (even you), a patent attorney knows the format requirements and the implications of using specific language and terms in a patent to provide the broadest coverage for your patent and avoid legal pitfalls. A patent attorney's job is to write patents. While most patent attorneys will recommend filing a patent, don't surrender your business decision to one advisor. It's important to understand that a patent can be a valuable tool, but there is no guarantee that your invention is patentable or that you still won't face direct competition.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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When you run an early-stage tech start-up, thinking about how you’re going to raise funding is always on your mind.

But it can be very difficult to attract angel investors and venture capital (VC) funding because sophisticated investors do not invest unless they see a unique and valuable opportunity.

An intellectual property strategy for early funding rounds

VC firms understand the importance of IP in valuing a business. The appropriate IP protections enable businesses to maintain a competitive advantage, mitigate risks, and raise outside funding. Having been apart of several startup that have raised multi-million dollar funding rounds and worked with high-tech startups in a number of industries, there are a few things that VC firms typically want to see in an early-stage company's IP strategy. Learn what you need to prepare ahead of your discussions with early funding rounds (Angel, “Series A”, “Series B”). Of course, every investor is different and every deal is different, so your strategy may need some tweaks. Note, for later stage funding rounds the emphasis may be different where investors want to see a more mature IP portfolio that includes issued patents with meaningful scopes.

What Investors Want To See In High-Tech Startups

Investors are often look for unique innovations that can be protected and monetized. Investors typically assess a startup’s IP using the following criteria:

You have a solid IP strategy

You need to know what IP your company needs to protect and how to protect that IP. Be able to explain how your IP fits into your overall business strategy, and how it will be monetized. A solid IP strategy that’s aligned with your business goals includes a forward-looking plan for capturing valuable IP in your industry.

In one example, you plan might be to develop a market for your product, stop others from copying your product, and dominate the market. In another example, you plan might be to develop strategic partnerships and license your IP to other companies. As part of your plan make sure to have solid IP counsel to help execute your strategy. Investors know that a competently drafted patent application hold ups to scrutiny in a litigation context and IPR proceedings. If your invention is relevant in foreign markets, you will need to plan ahead to protect your international rights. There is a limited timeline for pursuing patent protection outside of the United States, so make sure to incorporate foreign protection into your plan.

Your competition

How does your invention fits into the market relative to existing and potential competitors? IP protection demonstrates that you have thought about whether your product is viable in the market and how to distinguish your product in the market. IP assets are valuable independent of your business operations. IP assets work for you even when you don’t know it. For example, they reduce and deter industry competition. Would-be competitors will have to decide whether they want to risk infringing your IP by entering the market.

IP assets also protect you if a competitor accuses you of patent infringement. You can use your IP assets for leverage to resolve an issue. Instead of costly litigation, you can enter a cross-license agreement to access to your competitor’s technology. Having thought through these scenarios and having a plan to leverage your IP in the face of competition will put investors at easy.

Own It

When attract VCs, it’s critical to own the IP for your technology. You should be free of obligations to competitors, old employers, previous inventors, and other third parties. Document ownership of your patent applications and issued patents. Have strong employment agreements, invention disclosure records, non-disclosure agreements (NDAs), and non-compete agreements.

Additionally, you should refrain from signing any ill-advised agreements that could compromise your IP ownership, such as agreements granting broad licenses to your collaborators. Want to show investors that you really have your act together? Show them a catalog of documents that establish ownership of all your company’s critical intellectual property.

Strength of you IP

Investors are interested in the value and strength of your IP portfolio. Your patent applications must be able to hold up under close scrutiny. if your patent application claims are overly broad, your application may have a nearly endless number of prior art references cited against it. If your patent claims are too narrow, it may be easy for your competitors to design around your patent.

What is your track record? Investors might be wary of businesses that have dropped a high number of applications — it suggests that the business’s IP may not actually be enforceable or that many of the applications may not end of issuing. If an investor is not experienced with patents they may just kick the tires during due diligence to make sure there are not major issues. If, however, you are going for a significant funding round, they will likely do an in depth review, so make sure you are prepared to withstand their scrutiny.

What investors don't need to see in tech startups

For startups seeking early stage funding, investors are looking for startups with a cost-effective IP strategy, not startups that are wastefully spending. Here are a few misconceptions about what VC firms want to see:

Freedom to operate

A patent search is a search to aid in determining whether an invention may be patentable. People new to the patent world incorrectly believe that a patent search lets them know whether they could be sued for infringing somebody else’s patent. Determining the likelihood of infringement is known as a freedom to operate opinion or IP clearance search and usually involves a much larger scope and cost.

Freedom to operate searches are usually not necessary to attract VC funding. VC investors don't typically expect you to know with certainty that you’ll never infringe another company’s patent. Additionally, a startup’s products and business model are likely to change and pivot over time such that a freedom to operate analysis is often worthless by the time the company starts to be profitable. Most investors want to know whether you are aware any major roadblocks that would prevent you from entering the space, that's it.

Lots of issued patents

Investors know that the patent process takes time. Most investors want to know that you have a viable, well-executed portfolio, without any of the major issues. You should have patent applications on file and issued patents, but a long list of issued patents isn’t a prerequisite for early stage funding rounds.

Big Law Firms

Many businesses assume that the more you pay for an attorney the better they are and that the best patent attorneys work at big international law firms. Big law firm patent attorneys are very expensive and can quickly drain a startup’s limited resources. Investors know that you can get high-quality patent prosecution work from smaller law firms at more affordable rates.

Most investors simply want to see that you have engaged a patent attorney that is competent in your field of technology and experienced at managing patent portfolios. Investors will usually have their own patent attorneys look at your portfolio regardless of who your patent attorney is and judge the portfolio on the quality of your patent applications, not how expensive your patent attorney is.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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Computer software or programs are instructions that are executed by a computer.

Software is protected under copyright law and the inventions related to software are protected under patent law.

Source Code and Object Code

Computer software are instructions that form source code and object code. Software takes a lot of skill, time, and labor to develop them, so it is natural that you want to protect all your hard work. Computer programs can be copied and used by unauthorized persons. Your actual software and app source code may be protected under copyright law,. The concepts and inventions related to software may be protected under patent law.

COPYRIGHT PROTECTIONS

Copyright Law defines computer programs as literary work, and as such is protectable under copyrights. For example, computer programs are sets of instructions expressed in words, codes, schemes or other forms, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. The words, codes, schemes, or other forms may be protected under Copyright law as creative works the same as a book, a movie, or a work of art (and often to the coder, the source code is a work of art).

Copyright protection extends for author’s lifetime plus 70 years. For works made for hire, the term of the copyright is 95 years from first publication or 120 years from creation, whichever is shorter. Copyright protection is inherent at the time of creation and is automatically protected, and may appear to be attractive and free option to protect your software. Additionally, if you want to be able to definitively define the date you created your creative work, you can register your copyright with the Library of Congress. 

It should be noted that copyright protects the expression of an idea and not the idea itself. Hence, in the case of software programs, it is the software program that is protected, and not the functionality of the software programs. Unless you only want to protect exactly how the source code is written, it may not be a good idea to rely solely on copyright law to protect software related inventions. To protect the functionality of the software programs you should seek patent protection.

Patent Protections

In the United States software is patentable. Software patents are typically referred to as computer implemented processes. Software can be protected in the U.S. if it is unique and tied to a machine. Most importantly, for software to be patentable, the software needs to offer some kind of identifiable improvement. Merely doing something that is known on a computer (like adding numbers together) is extremely unlikely to be patentable.  For example, U.S. patent law excludes "abstract ideas", and this has been used to refuse some patent applications involving software.

In Europe, "computer programs as such" are excluded from patentability.  The EPO holds that a program for a computer is not patentable if it does not have the potential to cause a "further technical effect" beyond the inherent technical interactions between hardware and software.

While source code may not be patentable, it does not mean that a software invention may not be patented. One way of determining whether a software invention will be considered patentable subject matter or not, is by trying to judge whether the software invention offers a technical solution to a technical problem. The invention may be considered patentable subject matter if the software invention offers a technical solution to a technical problem.

Advantages of Patents over Copyrights

A patent over a software invention can be used to prevent others from utilizing a certain algorithm without permission or to prevent others from creating software programs that perform patent protected functions.

In contrast, copyright law protects only a particular expression of an idea i.e. copying of source code or a portion of it, and not the copying of the idea/functionality. 

Accordingly, patents offer much broader protection.

There are significant differences in the protections offered by patent and copyright. Here is a summary of the differences in the protections offered by copyrights and patents for software:

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Just got done sitting down with your patent attorney and explained everything there is about your invention?

Wondering what happens next?

After the invention disclosure meeting

Just got done sitting down with your patent attorney and explained everything there is about your invention? Wondering what happens next? There are three steps left in preparing your patent application..

Review Claims

First, your patent attorney will draft a set of claims. The claims are a concise description of your inventions that outline what you claim as your invention. Once the attorney drafts your claims, he/she will send it to you for your review and approval.

Review Drawings

Once you have reviewed and approved the claims, your patent attorney will prepare drawings of your invention that conform to the requirements set by the United States Patent and Trademark Office (USPTO). When the drawings are ready, your attorney will send them to you for review and approval.

Final Review

Finally, your patent attorney will prepare a full patent application for your invention that includes your claims, drawings, and a detailed description of your invention. He/she will then send the draft of the full patent application to you for your review and approval. Once you review and approve the full application the patent attorney will file your patent application.

That’s it. Once these three steps are complete, your patent application is now filed. Now just to wait for the USPTO to start examining your patent to determine if it is patentable.

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Sometimes the best way to determine whether your invention is patentable is to learn what is not patentable.

There are three main reasons why an invention may not be patentable.

What isn't patentable?

You come up with a great idea and want to know if it is patentable before you invest time and money to create it. Sometimes the best way to determine whether your invention is patentable is to learn what is not patentable. There are three main reasons why an invention may not be patentable..

First, if the idea is abstract and you can do it all in your head without any hardware or software, it is not patentable. For example, let’s say people normally use a phonebook to look up people’s telephone numbers and all your invention does is download the telephone book into an excel spreadsheet. This is an abstract idea that is not patentable. Other abstract ideas include methods for doing business, perpetual motion machines, and cold fusion machines. book.

ALREADY BEEN INVENTED

Second, if someone has already come up with your idea before you have, your invention is not new and is not patentable. The patent system is set up to encourage new ideas. If your idea is not new, it is not patentable..

Combination

Third, if no single person has come up with your invention, but you could combine two known inventions that are already patented or out in the public, your invention may not be patentable. For example, if you were to take a pencil and eraser and take the eraser to the pencil, the pencil and eraser are both already invented and taping the eraser to the pencil is a very obvious use of the products. If however, you invent a brand new way to attach the eraser to the pencil, like the little metal clamp on the top of most pencils, then your invention may be patentable. If your invention can overcome these three hurdles, you are well on your way to getting a patent.

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Getting an issued patent is a big accomplishment for a startup or small business.

Just about this time when you start to see success, you may find out that someone is ripping off your product. Now what? How do you stop them?

Getting ripped off

Getting an issued patent is a big accomplishment for a startup or small business. The issued patent represents a lot of time and money. It is rewarding to know that as your business is starting to make money and grow that it is protected. Just about this time when you start to see success, you may find out that someone is ripping off your product. Now what? How do you stop them?

Nuclear Option

Before you take the nuclear option and file a lawsuit, the first step is to send the competitor a cease and desist letter demanding that the competitor stop ripping off your product, cease all sales, and pay you at least a portion of their sales of the product. Depending on the situation, the cease and desist letter can be a great option.

If the competitor is unaware that they were ripping you off or do not have the ability to fight you, the letter may get them to stop. However, if the cease and desist letter does not work, what are your options? Typically you have two options.

Lawsuit

The first option is to file a lawsuit and to enforce your patent in court. This can be a good option to get a court ruling to get the competitor to stop selling the ripped off version of your product. Usually, the lawsuit does not go all the way through the courts and the lawsuit can be settled out of court. However, lawsuits can be expensive. Even if you win, you may face large attorney’s fees, months or years of disruption to your business, and a lot of time spent in court rather than doing what you love.

The other option startups and small businesses have when the cease and desist letter does not work is to approach a larger competitor in the business. For example, let’s say you are a small player in a big industry, but you have a really innovative patented product. The knockoff company may feel that they can get away with pushing you around, but if you sell or license your patent to a larger competitor who may be interested in acquiring it, then two things happen.

Payday

You will get a payday for a product that is already be knocked off, and you may not be able to protect yourself.

Licensing

If a licensing deal is reached, the bigger company will enforce your patent, stop the knockoffs, and you have now established a new relationship with a leader in your industry. This is also a win for the bigger company because they have a new feature for their product and they can have another weapon to fight off their competitors.

While finding out that someone is knocking off your product is never an enjoyable experience, look at all your options to figure out how to turn this into a favorable outcome.

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Few things are more exciting than coming up with an idea, reduce it to a prototype, and beginning to sell it.

There is also nothing worse than having your invention stolen, ripped off, and claimed as being invented by someone else.

First to Invent

Being the first to invent something is exciting. Few things are more exciting than coming up with an idea, reduce it to a prototype, and beginning to sell it. There is also nothing worse than having your invention stolen, ripped off, and claimed as being invented by someone else.

PRIORITY DATE

To establish who invented something first, the government sets priority dates. The United States Patent and Trademark Office (USPTO) assigns a priority date to your invention the day you file your patent application. The priority date represents the day that the USPTO defines as the day you created your invention. Once your priority date is set, anyone who comes along after you with the same or similar invention runs into your patent.

Setting the date

When do you want to set your priority date? As early as possible. Typically startups and small businesses will go through a few iterations for an invention before landing on the final product. Once you have defined your product and can fully explain the details of your invention and before you begin showing prototype/product to others, you should contact a patent attorney. The patent attorney can help you prepare and file a patent application to set your priority date.

Patent Pending

Once you set the priority date, you are free to mark your invention as patent pending and begin pitching to investors or selling your product. Also, keep in mind that once you show your invention to the public or start selling it, you have a year from that day that you have to file your patent application or you lose your ability to file that patent application for good.

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The difference between a good patent attorney and a bad patent attorney can be the difference between a valuable patent and a nice piece of paper to hang on your wall.

Valuable v. Wall Hanger

The difference between a good patent attorney and a bad patent attorney can be the difference between a valuable patent and a nice piece of paper to hang on your wall. Telling the difference between a good patent attorney and a bad patent attorney may be more difficult than it appears.

All patent attorneys have an engineering background. Most patent attorneys have a decent grasp on patent law. Most patent attorneys appear to be smart. Yet, any angel investor or institutional investor can tell you, not all patent attorneys draft good patents.

MOST IMPORTANT QUESTION

So what is the best way to distinguish between a good patent attorney and a bad patent attorney? Ask them one simple question: Do they own their own patents?

This simple question can provide a lot of insight. Think about it, would you want a chef who never tasted his own food cooking your dinner? Would you want an auto mechanic who only rides a bike working on your car? Of course not. Yet many patent attorneys have never filed a patent application for themselves and do not own any patents.

Always a reason

If you ask many patent attorneys if they have ever filed a patent application for themselves or own any patents, most will answer no. Now, attorneys are taught to think quickly on their feet and may give you a great sounding explanation why.

Inventive Enough?

They may say they are not inventive enough to create something worth patenting. They may say that they leave the inventing to the clients. Let’s think about the logic here. If the patent attorney is not inventive, do you really want them to help capture your invention and help you make sure competitors do not design around your invention?

Not worth the money?

Maybe your patent attorney does not think patents are worth investing in? If this is the case, then why are they charging you thousands of dollars to prepare your patent application?

Maybe they do not have the free time? If they do not have the free time to invent something, then how can they appreciate all the blood, sweat, and tears that goes into your invention? On the other hand, if a patent attorney has invested their time and money into their own patent, they understand what it is like to be a start-up or small business. The patent attorney understands that every dollar counts to a start-up or small business and that a patent is a big investment. The problem with a patent attorney who does not own his own patent is the same problem we have with Congress. When Congress spends other peoples’ money, they don’t really care how much they spend because it isn’t their money.

Cares about you

When a patent attorney that does not own a patent, they don’t care how much a client spends on a patent. When your patent attorney does own their own patent, they will be much more careful about how they charge you. They will make sure to be extra careful not to overlook anything or make mistakes because they fully understand the consequences to a deficient patent. A great patent attorney not only understands patent law and has an engineering degree, a great patent attorney understands inventing, running a business, and budgeting. The best way for a patent attorney to gain this understanding is to experience starting a business and investing in their own patent. So if you are looking for a great patent attorney, the first thing you should ask them is “Do you own a patent?” If the answer is no, move on to the next candidate. If the answer is yes, rest assured, you have found a great patent attorney.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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Going through the steps of getting a patent for the first time can feel a bit like exploring a jungle, you don't want to get lost.

The Steps To Getting a Patent

To get a patent, you will need to prepare a patent application and have it examined by the United States Patent and Trademark Office (USPTO). During examination, you may need to clarify with a patent examiner how your application is different and work with the examiner to reach an agreement regarding what your patent covers. If an agreement can be reached, the USPTO will grant your patent.

Initial Meeting With a Patent Attorney

Once you have come up with your invention and understand it well enough to explain it to another person, it is time to meet with a patent attorney. When you meet with a patent attorney, the attorney will sit down with you and have you walk him/her through your invention and how it works. Once the patent attorney understands the invention, he/she will get to work preparing your patent application.

Preparing a Patent Application

To prepare the patent application, the patent attorney will have formal drawings done illustrating your invention.

The patent attorney will also prepare a draft of the patent application that describes in full your invention and several variations of your invention. Once the draft is prepared, the patent attorney will work with you to make any clarification or changes needed to make sure your invention is fully described.

Submitting Your Patent Application

Once your patent application has been prepared and any necessary revisions made, the patent attorney will submit your patent application to the USPTO for examination.

Because of a backlog at the USPTO it can take anywhere from 18 months to 3 years before an examiner at the USPTO will examine your patent application.

Patent Application Examination

When the patent examiner examines your patents, he/she will determine whether it meets the standards of novelty and non-obviousness.

If the examiner believes the patent application meets these standards, he/she will grant your patent. If the examiner does not believe the patent application is novel or non-obvious, the examiner will issue a rejection (known as an office action).

Dealing with Rejection

If your patent application is rejected, your patent attorney will prepare a response to the rejection arguing why your invention is different.

Disagreement

If an agreement cannot be reached with the examiner, you may appeal the patent examiner's decision by escalating the case to have other examiners review the patent application. Alternatively, you may decide to no longer pursue the patent application, which is called abandonment.

Agreement

If an agreement can be reached with the examiner, the examiner will allow your patent and issue a notice of allowance. When the notice of allowance is issued, you pay a fee and are then the proud owner of a patent application. To maintain your patent for its full life, you will periodically have to pay maintenance fees to the USPTO.

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Patent Applications Are Long Detailed Documents. What Are The Different Parts Of Patent Applications?

Learn what a background section, a specification section, claims section, and figures are used for patent applications.

FIGURES, BACKGROUND, SPECIFICATION, CLAIMS

Each part of a patent applications serves a different purpose. When the parts are combined, all the parts make up a patent application that protect your invention.

Figures

The figures of a patent application illustrate the details of your invention. They show all the details of your invention so that another person can understand what your invention is. The figures include reference numbers to identify the parts of your invention that are discussed in detail in the specification.

Background

The background of a patent application describes the problem you are trying to solve or the technology you are trying to improve. It sets the stage to help an Examiner understand why your invention is unique and different than what is already out there.

Specification

The specification describes in detail all the parts of your invention. It teaches an Examiner how your invention is built or how it works. The specification also includes several different variations or embodiments of your invention so that competitors cannot simply design around your invention.

Claims

The claims are the heart of a patent. The claims define the limits of exactly what a patent does and does not cover. It is a list of the features of your invention that are necessary to build or use your invention.

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What is a Create-It-Yourself (CIY) patent as opposed to a Do-It-Yourself patent?

In short a Create-It-Yourself is when you get to do all the fun parts related to making something new

like designing the flames emblazoned on the side of your Mustang or choosing the exact ingredients in your gluten-free nutrition bars, without having to do the hard work of stencil painting or wheatless cooking yourself.

Recently I have been reading a book by Anthony Flynn and Emily Flynn Vencat titled Custom Nation. The book discusses how we are becoming a nation of customizers. We want everything customized from our build-it-yourself hamburgers and on-demand video streaming to our custom homes. The book shares, in part:

CUSTOM NATION

Before the Industrial Revolution, customization was the norm because we did everything ourselves, like cooking stews and sewing curtains. But today’s customization isn’t Do-It-Yourself (DIY), it’s Create-It-Yourself, or what I like to call CIY. Create-It-Yourself is when you get to do all the fun parts related to making something new.

The book makes a great point. While DIY forces you to do everything on a project, including the less than fun parts of the project, CIY allows you to just do the fun parts of a project.

The same principle applies to patents. As an inventor, in-house counsel, or applicant, you likely do not want to sit down and explain in minute detail every aspect of your invention. You likely do want to be involved in the overall process and building assets for your company. So what are some of the CIY aspects of the patent process that enables you to customize your patent?

Coming up with the idea

For most inventors, coming up with the idea and figuring out how to make it work is the most exciting part of an invention.

This is also a crucial part of the patent process because you have to know how your invention works to be able to explain it to others. You also get to figure out other ways people might design around your invention and protect against this.

Creating drawings of your invention

Provisional v. Non-Provisional Patent Application

If you are a start-up, a solo inventor, or just trying to decide if you want to invest in the preparation of a patent application, a provisional patent application is a great option. The provisional patent application is a cheaper option that holds your place for a year while you decide whether to invest in a full patent application. If you have already made up your mind and are ready to get going then a non-provisional patent application is the way to go.

Fast Track v. Normal Track

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A good invention is rare. That flash of genius is fleeting so be ready to protect it when it comes.

A patent provides protection for your invention. To protect your invention, should you file a provisional patent application or a non-provisional patent application?

It’s All About The Priority Date

Before you go out and tell the world about your invention, find investors, and get your start-up launched, you want to make sure your invention is covered. A priority date is that date that you represent to the patent office as the day by which you created your invention. It lets everyone know that anyone that comes up with your invention or copies it after the priority date is infringing on your rights. You can establish your priority date two different ways. Either by filing a provisional patent application or by filing a non-provisional patent application. So what is the difference between a provisional patent application and a non-provisional patent application?

Provisional Patent Application

A provisional patent application is an informal patent application that can be prepared and filed at a reduced cost.

The provisional patent application temporarily holds your priority date for a year while you decide whether you want to invest a greater amount of time and money to prepare a non-provisional patent application. By the 1-year deadline, you must decide either to convert your provisional patent application into a non-provisional patent application or lose your priority date. Provisional patent applications are a great avenue for start-ups and small businesses with a limited budget that are trying to decide if they want to invest in a full non-provisional patent application. During the year time frame, you can also mark your invention as patent pending.

A word of caution

Some investors may largely disregard a provisional patent as having little value because provisional patents do not get examined by the patent office until they are converted into a non-provisional patent application.

If you are seeking investors for your start-up you may want to explore going straight for a non-provisional patent application.

Non-provisional Patent Application

Typically when you hear about patent applications, people are referring to a non-provisional patent application.

A non-provisional patent application is a formal patent application that includes drawings, a description section, and a claims section. It includes a full description of your invention with all the variations and designs. A non-provisional patent application puts your invention in the queue at the patent office for examination. The non-provisional patent application also allows you to mark your invention as patent pending. With a filed non-provisional patent application in hand, you can go out to investors to raise money or start selling your invention in the marketplace.

So which door should you choose?

If you are just getting started and am not sure whether your invention will be valuable or if you have a limited budget, file a provisional patent application. If you are looking for investors or are already committed to bringing your invention to market get a non-provisional patent application.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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You have a great idea and you want to start a business. Then the worrying starts to set in. What if I work really hard, invest my savings, and then someone comes along and rips me off? What if a big company steals my idea? How do I protect my business? These are the common concerns any startup or small business has. Is the answer getting a patent?

Creating, developing, and producing a product is a big investment.

The old saying goes that it takes money to make money. This saying certainly holds true in the business world. Whether you creating the next iPhone/Android or starting a lawn mowing business, every new business endeavor takes a lot of time and money. You pour your blood, sweat and tears into your business. It is almost like another child joins your family. With such a large investment going into a business, the government wanted to provide a way for a business to recoup their investment and make a profit.

A patent is an exclusive right the government grants businesses to make, use, and sell a product for 20 years. A patent enables a business to stop others from taking their product, ripping it off, and calling it their own. At the end of the 20 years, the right ends and everyone can make and sell the product. The government grants this right to spur innovation and grow the economy.

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Patents can be a great asset or a money drain

Most inventors think they have come up with the next big thing. Some do and most do not. Before investing your life saving, take a minute to think about the best way to invest your time and money.

Salvation or Anchor

Most inventors believe they have come up with the next big thing. They believe that everyone will want to steal it. They believe that a patent is their ultimate salvation. Inventors will mail themselves postmarked letters, record phone calls, hire attorneys to draft disclosure agreements, and generally act paranoid. Too often, inventors never stopping to think about whether it's really worth it.

Should you go after the treasured paper with the gold seal from the patent office? Here are a few questions to ask yourself before you invest in intellectual property.

Patentable And Valuable?

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