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I've had a few software ideas before that could probably be patented.(decided not to pursue any of them, however). Basically, I don't want these ideas patented though. I don't care if someone else implements them, I just don't want to get sued later by some patent troll who patented the idea I had and implemented 5 years ago.

Would posting your idea to public websites, and using the poor man's patent technique ensure that even if someone else patents your idea, you have protection from being sued, and possibly the ability to invalidate their patent?(assuming the reform bill doesn't pass)

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I'm tempted to vote you up for the great link to a poor man's patent and then vote you down for listening to the advice in the link. The guy writing this article is a patent attorney and better qualified than anyone on this site is likely to be in the areas of US patent law - I'd listen to the advice in the link you posted and keep notebooks of your ideas. –  bethlakshmi May 19 '11 at 21:55
    
I am confused. Are you planning to make $ off of these ideas or just wish to avoid being sued for having naughty thoughts? –  Job May 19 '11 at 22:45
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@Job I don't care if other people "steal" my idea. The only reason I'd patent it is so that I don't get sued by some troll who patents it later. –  Earlz May 19 '11 at 23:37
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Wait, let me see if I understand. In asking if you should use a "poor man's patent", you actually link to an article that explains that there is no such thing? Written by a patent attorney? And then ask us for legal advice? If you're not going to listen to an expert in the matter, why would you listen to us? –  Rein Henrichs May 20 '11 at 1:24
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If you don't care about patenting something yourself, find a way to publish it so it will count as prior art. Consult a patent lawyer to see how best to do that. Around here, you can usually get a short consultation with a lawyer inexpensively, and his or her advice will actually be halfway reliable. –  David Thornley May 20 '11 at 15:34

5 Answers 5

up vote 4 down vote accepted

As someone who studied to take the patent examiner test, several of your presumptions are slightly faulty.

Would posting your idea to public websites, and using the poor man's patent technique ensure that even if someone else patents your idea, you have protection from being sued, and possibly the ability to invalidate their patent?

The certified mail trick doesn't work.

Prior publication could be a bar to issuing a patent, however that doesn't stop the USPTO from issuing patents and letting the courts decide the merits of the case (which appears to be the policy since the mid 90s).

Publishing online won't necessarily help as your website might disappear in the time between when you put it up, and the lawyers start circling. One might take the preventative approach to using DMCA take-down notices to erase your alleged prior publication.

The fee for provisional patents is $110 for "small entities". You may want to contact a patent attorney to see if filing and then abandoning a provisional patent application would meet your requirement to make it so that "patent trolls" can't subsequently patent your invention.

I don't care if someone else implements them, I just don't want to get sued later by some patent troll who patented the idea I had and implemented 5 years ago.

There have been a number of submarine patents, but changes in US law in 1995 mean that the patent runs from the application date, not the date issued. In my opinion, the most notorious one was 4,942,516 which was filed in 1969, and the Patent Office didn't issue the patent until 1988 (they kept sending requests back and forth, which delayed the issuance). Because the application was "in process" this meant that any time someone else tried to file for a similar patent they were autorejected for a patent. This lead everyone in the industry to think that the concept of a single chip microcontroller was unpatentable. Until it was issued in 1988 and the submarine could have sunk the entire electronics industry as single chip microcontrollers are used in almost everything (your microwave, your phone, dozens in your car and so on). Under the new laws, the patent would have expired before it was issued. Under the old laws, the industry had 18 years to develop and mature before the lawyers started looking for 9-digit royalties from semiconductor manufacturers.

That "troll" might have already filed an application for a patent, but it hasn't been issued yet. In this case, you may think you published an article in May 2011, but since the other person filed in 2010, your publication was not prior to their patent application.

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If you're concerned that you as a developer is going to be sued about your implementations then don't worry. Trolls typically sue only if they smell money. You as a "poor man" do not qualify. Anyway it's usually a company you worked for that is at risk. You as an employee is typically (but not always) protected.

If however you yourself run projects which utilize the ideas in question then it is recommended that you register an LLC somewhere far far away from the US and other countries which support software patents and run your projects under its name. That will provide enough barrier from many trolls. For instance European courts do not generally find US legal hassles all that amusing. The courts of some little country in the middle of nowhere might not give a damn about US patents at all.

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"and other countries which support software patents" - what other countries? –  vartec May 20 '11 at 10:07
    
@vartec: Australia if I'm not mistaken. –  user8685 May 20 '11 at 10:36
    
Software is patentable in Europe, but the originality bar is quite a bit higher than in the US (which makes it much less objectionable). –  Donal Fellows May 20 '11 at 12:28
    
don't bet on not getting sued just because you have no money. Lately patent trolls have been adding smaller firms in certain locations to suits in order to try and get the trial where they want it. If you live in a patent-friendly circuit, even a poor man might find himself on the wrong end of a patent suit. –  Michael Kohne May 20 '11 at 13:01
    
@Michael Kohne: One legal technique that's been used for a while is to sue people who can't effectively defend themselves so the suers can point to a successful court case in their negotiations and further lawsuits. –  David Thornley May 20 '11 at 15:30

From my limited understanding, previously published works cannot be patented. If you just want to be protected from some else patenting your idea in the future, and have no care about IP protection, put it into an appropriate open repository or code snippet store (or two) such as source forge, bit bucket etc, meaning you have published it, hence, no patentable. If you don't want to share it, you could use a private online (revision controlled) store, so that you can prove when you created the work, with an independent third party to back up your claim, however, that would be more work in the event of being sued. Imagine a letter from a Lawyer, suggesting patent infringement - you email back with a link on an open site proving prior art- he will back off as soon as he sees that not only you, but everyone else in the world, has the proof they need to defend a patent infringement. He will then move onto other targets, hoping they are not aware of the original work.

If you want certainty, you need to engage a lawyer.

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Will this same strategy work if the patent reform bill passes? (one portion is the person granted the patent is the first to patent it, not the first person to invent it) –  Earlz May 19 '11 at 23:39
    
You'd need a qualified patent lawyer to answer that. Based on my understanding, though, not only will the bill have to pass, it will have to be tested in courts to see exactly how the courts interpret something so controversial before you'll know for sure. –  blueberryfields May 19 '11 at 23:46
    
You won't want to be the case that is setting the precedent for that one...... –  mattnz May 24 '11 at 1:03

You could move your company out of the US, and into some country in Africa, Central America or the Caribbean. In addition to the comfortable climate and potentially better tax conditions, you'll have the benefit of having judges who have little if any interest in enforcing patent laws from outside of their jurisdiction.

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If only companies started fleeing from the US en mass then the lawmakers would finally turned their attention to the patent issues and perhaps canceled those laws. Unfortunately they are most likely paid to keep it intact. –  user8685 May 20 '11 at 10:40
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@Dev: They're most likely to act by making it illegal to move a business to another country… (Aaargh! My cynicism is showing through!) –  Donal Fellows May 20 '11 at 12:29
    
@Donal: True, but that would only be scarecrow because you hardly ever move a company in practice. You create a new one, you transfer the assets, and you shut the previous one down. –  Denis de Bernardy May 20 '11 at 12:31
    
@Donal Fellows: I read in the news a couple of weeks ago they were considering depriving of American citizenship those individuals who prefer to relocate financial assets to other countries. Your cynicism has not missed by much. –  user8685 May 20 '11 at 12:32
    
Funny answer! But foreign companies can be sued in the US for violating US patents, so I don't think this works. Otherwise the technique would actually be in use. –  MarkJ Mar 19 '13 at 13:38

Get 10,000,000 Americans to sign a petition that software and all other information cannot be patentable as per our Constitution. Such a massive restriction on communication and learning is terribly stifling, and Congress has no right to create a law that does not serve the general welfare, common defense, etc, and which stifles progress in the art.

And what kind of low inventiveness bar is that ("non-obvious to a person having ordinary skill in the art")? We are talking about one person with money being able to tie down collaboration by millions. It's absurd. Software is infinitely reproducible at $0, 0 seconds, 0 energy. Patents make no sense when you don't need protection against billion dollar firms. Patents should NEVER EVER be used to restrict a person or a small firm. Are patents to help the "little guy" or to hurt the little guy?

Also, write down how many patents you would otherwise create and how easily most open source projects could be blocked from progress (eg, because of the low bar allowing wealthy average killed folks to write a broad description of where that project likely would go anyway).

Patents are costs on the people who truly create things. This is an attack on the freedom to think and create written works and information bits to share with others and leverage for small businesses and consumer use. This is an attack on independent free speech. .. and it's an attack on the vast majority of us who don't have millions of dollars to use to patent our many "new" ideas that pass that low inventiveness bar, nor to defend from such unjust attacks.

Oh, and patent examiners are not reading the hundreds of millions (or billions) of existing open source code lines. They are not analyzing that. They are granting monopolies without knowing how much of the prior art is unknowns to them. They are making a mockery of society and of the Constitution by allowing software to be patented under these conditions.

I am considering walking against software patents (and for open source). It only takes an hour each day to reach many people daily and let them know how they hurt from biased and stifling software patents.

PS. Another defense idea might be to ask your employer to support open source software (with $) since patent attacks against such a public good and source of knowledge and empowerment is a real attack on our Constitution.

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I agree. I'm completely against software patents, and I'm hoping they'll go away in the years to come as this generation of youth(and technology) begins to make it's way into political positions. But, in the meantime, I don't want to get sued –  Earlz May 20 '11 at 14:37
    
I think associating yourself with open source and being willing to make a lot of noise should you receive a C&D letter will help if your goal is to protect yourself and you are small. However, going to court can be very costly and is a growing risk the more money you make. The person attacking may not flinch if you show them your wonderful addition to the prior art. In any case, complaining to government representatives cannot hurt. If people don't make a lot of noise and get popular sentiment on their side, you will find yourself picking between bad and worse down the line. –  Jose_X May 20 '11 at 15:00
    
@Earlz, keep in mind how low is the bar to inventing and getting a patent (even if getting a patent is made difficult by the fact someone likely beat you to the punch if you are patenting). It's very possible that your ideas can be respun just a little differently and the attacker refile.. or that someone else will come knocking again. In these cases, your best defense has little to do with the prior art as you see it. Stronger defense might be what the community/society as a whole can exert (including pressure on gov reps). [IANAL. Talk to one and you will surely get different advice.] –  Jose_X May 20 '11 at 15:06
    
@Earlz, I am not sure how useful making information public will help. Not to repeat too much, but all your ideas can be used to help someone else compose a patent that is different enough yet will bite you at some point in time. The patent examiner won't even know of your work chances are. What I know is that existing hesitation about making things public is one way in which the patent system stifles progress and collaboration. Your loss in court (perhaps quickly) will at least entitle you to appeal on Constitutional grounds. Will you have the high ground and the support and attention of many? –  Jose_X May 20 '11 at 15:28

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