Do You Really Want a Patent?

August 26, 2010 - The patent system is messy, far messier than most inventors realize. Here's some perspective from Attorney Erik J. Heels. Written prior to the Bilski decision (which he feels was worthless) it's especially relevant for software and business method patents:

Patent law is currently broken. Especially software patent law. A pending Supreme Court case (Google Bilski for more info) may fix it or make further break it. In short, you can expect to pay more for, wait longer for, and get less from your patents than you would have 5 or 10 years ago.

• Cost – At my IP law firm, the average cost to file a patent is $11.5K. This represents about half of the overall cost of getting a patent. File it for $11.5K, finish it up in a few years for another $11.5K, total cost $23K. (There is a large standard deviation. Two thirds of our patents are filed for between $7K and $17K, so you are unlikely to pay less than $14K or more than $34K.)
• Time – Your patent will be pending for years, 5-6 years for software patents. Your patent will likely be pending before you need to make the decisions about filing foreign patents. In most cases, your patent will be pending long after the product (that is the subject of the patent) has reached the end of its lifetime in the marketplace. In some cases, the patent will be pending long after the company (that owns the patent rights) has been sold or has gone out of business.
• Rights – Less than 50% of filed patents will issue, so your chances of getting a patent, starting out, are less than getting heads in a coin flip. If your patent is a combination of previously existing elements, then the chances are closer to five percent that a patent will issue (Google KSR for more info). Is your invention above average? Are you an above average driver? Note that 80% of people surveyed answer "yes" to the second question, but 37.5% of them are wrong.

Read more for what Erik J. Heels suggests you spend time and money on instead of patents here.