Tuesday, March 14, 2006

Duh: "It's easy to file a provisional patent application but those are only good for a year."

from InfoWorld: Turns out, [Richard Scott Draughon is] actually pretty down on patents. "It's easy to file a provisional patent application," he says "but those are only good for a year. After that, many people don't realize all the work involved in maintaining a patent." This is not a file-and-forget process. After that first year, the patent process begins in earnest, and you'll need far more detailed documentation and technology demonstrations. It also doesn't end there as maintaining a patent requires a long-term commitment to updating and maturing that documentation. "It's a lot of work over time," he says.

Hmm, from this you might think filing a provisional "got" you a patent, and then you just had to maintain it, however much the difficulties. No wonder no one understood NTP v. RIM.

Similarly, from InfoWorld: Draughon describes one alternative I didn't know about: Trade secret law. This is a state-level law that's much easier to get than a patent and much quicker, too. Plus, there's no registration/application scheme to worry about. (Me likee already.) You may still need to deal with patents later, but it's a quick way to cover your rear in certain situations.

Sure, let's go get a patent after we've been doing trade secret for a while.

Oliver Rist also wrote: Being a small software biz founder myself, I know part of the reason: VCs like to see the phrases "patent-pending" or "patented" on anything into which they're considering dumping money. It's that mythical IP-value concept.

Hmm, at the VC meeting I went to on March 1, that line of thinking would have gone oh for five. VCs don't care about their targets having patents, ESPECIALLY in the software biz. See IPBiz on March 2: Patents are not why we are investing.

Also: Draughon agreed with my VCs-want-it motivation for filing patents, but he also said that many of the folks he talked to were filing patents under the mistaken impression that it would scare off competitors.

"Quite the opposite," he argued. "If competitors see a burgeoning market, then filing a patent really only encourages that viewpoint. Thinking this will scare away competition is really a misplaced expectation. If it's a good market, competition will come regardless."

If there's promise to innovate, people will come to an area. Smart people will check out the patent landscape, and plan accordingly. Unsophisticated people will pay $612.5 million settlements. VCs tend to think their targets can design around any patent protection; sometimes they are right.


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