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I feel patents are innovation killers, but I don't want something I've written and put a private licence on end up being patented 3 years later by some troll.

What's a good compromise here? Or, am I actually not at risk?

I understand most of the members on the site aren't lawyers.

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Small fish has no choice but to take a risk daily. –  Job Aug 3 '11 at 15:01
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Another reason to not patent you might want to point out: they're expensive. I've seen estimates of about $10K for each patent. That's usually prohibitive for an individual who isn't intending to make money selling an invention. –  David Thornley Aug 3 '11 at 20:30
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Good public radio piece on why software patents are broken: listen here –  nerdytenor Aug 4 '11 at 6:11
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3 Answers

up vote 6 down vote accepted

There is nothing inherently wrong with a patent. They protect the innovator. So if you're not gaming the system then by all means do not feel guilty about it. The patent gives you time to flush out your idea, protects you from someone else stealing the idea, and protects the idea from being owned by a patent company that is gaming the system.

Remember also that as the patent holder you can give rights to it to whomever you want. So if someone is innovating and they feel your patent is a problem you can give them rights to do what they need. Patents are not bad; people with dishonorable intent with a patents are bad.

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This ignores a few critical issues with patents as they are today. There's no guarantee you'll remain the owner (i.e. in case your business fails it could be bought by a troll), there's no reasonable way to let open source projects use your idea (their license may be incompatible, even with a blanket patent license). It also ignores simply publishing your idea. There is then prior art, and even if a patent is granted later it will be relatively easy for its victims to fight it. –  Kristof Provost Aug 3 '11 at 15:23
    
To whomever downvoted my answer why the downvote? I thought downvotes on answers were for answers that didn't really offer an answer. I am just curious. –  Ominus Aug 3 '11 at 16:48
    
I didn't downvote, but I think many people disagree with the statement "There is nothing inherently wrong with a patent." as it applies to software. The basic argument is that people are patenting an idea, not the embodiment of an idea. For instance, the idea of buying something online with a single click, as opposed to a particular implementation of that idea. Ideas are not supposed to be patentable, just inventions. –  KeithB Aug 3 '11 at 17:56
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If you patent it, you can always choose to give anyone that you feel deserves the use of the patent a licence. This will be a bitch but ensures that you are always in control of it and know exactly where it's going, it'll prevent anyone else from patenting it and it'll allow you to allow other people to use it.

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If you have something that you feel is truly innovative, then patent it! Software patents can be abused by trolls, but if you are worried they will patent it in the future and make your life miserable, your best bet is to patent it now, before they do.

I guess your other option is to open-source it, though I'm not an expert and I don't know if that would make it impossible for others to patent in the future - and that might not be compatible with your business model.

Oh yeah, and you might want to talk to a patent lawyer as well, because they will probably know more than I do about this sort of thing. ;)

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If your idea of open sourcing it is to make it prior art, I doubt that provides much protection; there are now many software patents that post-date prior art, although having it in the wild might be a defense against those patents. (My head explodes every time I think about this...the patent system is seriously, seriously broken). –  Robert Harvey Aug 3 '11 at 14:59
    
@Robert Harvey: I wasn't sure about that. I guess someone would have to oppose the patent and show that it was open-source prior art. –  FrustratedWithFormsDesigner Aug 3 '11 at 15:01
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