Is it worth patenting an algorithm if I don't have the money to defend against infringements?

Question

I have some algorithms that I am considering patenting, but I wonder whether I should just trust that rivals won't simply read the patent papers and copy my ideas.

While I hope that my inventions will soon improve my financial circumstances, I currently do not have the time, money or skills to determine whether another commercial software application is stealing my ideas. Their software would be closed-source, so the only ways to verify that they are infringing my intellectual property would be to either to seek a whistle-blower within that organisation or to reverse-engineer their application. And then I still have to come up with the money to sue!

Do the pros of having a patent outweigh the cons?

Answer 1

This is a great question, with no one right answer.

The strength of a patent comes from the ability to enforce it. If the patent owner cannot enforce it for whatever reason (such as a lack of funding), the patent is effectively toothless.

But your competitors will likely not know that. They may therefore be dissuaded from infringing simply by the existence of a patent and the assumption that you would sue. Such a chilling effect on competition may be valuable to you.

In addition, if there is infringement, you may be able to get a licensing agreement without the need for litigation. This can be a very lucrative business model, and so may justify the cost of patenting.

And if litigation seems likely, there is a nascent field of litigation funding. While your funders will take quite a great deal of the damages, you may at least get something out of the end of it.

Finally, even if you can't sue, someone else could. You might therefore get quite some value from selling it off at some point. There are a number of tech businesses where most of their value comes from their IP portfolio.

On the whole therefore it depends how you see yourself proceeding. If you're unsure, it may pay to err on the side of patenting: once you disclose or use your invention publicly, you're generally barred from patenting it later (but for a short grace period in some countries), whereas it's easy to abandon a patent (or application) later down the track if you wish.

Answer 2

My answer is yes, and I agree with Maca. I'll add that your ability to enforce it might change in the future.

I'm not implying that your situation is the same as mine, but consider this:

In my industry at my company, we basically lack the ability to enforce the patent as well, but the more patents we have that our very large competitors infringe or might infringe, the less likely they are to try to sue us, either for any frivolous reason or for something we might be inadvertently infringing. I'm not sure, but I'd think this is fairly common in crowded technology areas.

In other words, we are basically unable to enforce, but also unable to easily withstand suits initiated by others as well and a patent portfolio is a reasonably priced arsenal for dissuading others from litigating against us due to counter-suit possibilities.

It's very similar to cold-war nuclear game theory.

Answer 3

To my knowledge, depending where you are located, patenting something as abstract as an Algorithm is not even possible (EU). How to tie your laces is an Algorithm. Can you patent it? Hopefully not!

Answer 4

Let's say you created a patent, and big company A infringes it. Damn you, big company A. Cease and desist. Big company A laughs at you and says fuck you, you're tiny, we can do whatever we want. At this point, you turn around and contact your friends at big company B and say hey, I can sell you a cheap way to fuck over big company A. Big company B shakes your hand and buys you drinks and says you're our boy, you sell them your patent, and big company B sues big company A, making big company A sorry that they said fuck you to you in the first place.

So it's complicated, because patents can change hands. Transactions and future technology development can change the value of a patent, sometimes dramatically. Don't assume that just because you personally can't enforce your patent, no one will want to. A patent has no value if it is never written in the first place. Protect the idea first and foremost.

Oh, and in case no one has told you this, you can't patent an algorithm. Algorithms are math. You can't patent math. You can however patent a method or a VLSI or an apparatus, which is what everyone does instead. Go read a textbook on patent authorship.

Answer 5

An algorithm is not patent eligible subject matter.

Even if coupled with a generic computer which does nothing, but carry out the algorithm since the Alice-decision of 2014 by the SCOTUS.

Software may be patent eligible subject matter, still.

This means, an invention that includes software may still be granted a utility patent if it is not obvious, for example a system.

Even if the permutations majorly relate to the software component, and the system only uses one additional hardware component beyond a generic computer, it may still be a system which will incorporate software, and thereby protect the software much more broadly than copy right would; in this sense, the software will be subject to a utility patent. Independent claims of systems typically list the hardware component necessary and sufficient to run the broadest embodiment of the invention.

Furthermore, one may obtain a patent for a "computer program product" which is effectively described as the software stored on a storage device, in this sense, an embodiment of such a patent could be a thumb-drive that one copies the algorithm as software code that will perform operations on a generic computer.

As a third way to obtain patent on software (not an algorithm, but a chain of computer instructions such) is to describe the algorithm as a method. Method patents don't necessarily lay out the generic computer prerequisites.

It is common practice to describe patent eligible subject matter software in their patent-sought embodiments as each a system, a computer program product and a method.

The U.S. used to have the most liberal patent system favoring software - and even algorithm related - subject matters for the purposes of utility patent applications.

It is debatable that now the EPO is more liberal in this sense, my experience is that it is not; the EPO is still more restrictive, and it will be the same with the Unitary Patent of the EU as well.

Answer 6

As it seems, you are assuming (I guess it is because it's typical on your industry) that someone will try to use your ideas without your permission. I believe that having them patented will, at least, give your the chance to fight (or to find a sponsor for a fight).

As I see your problem, if you file a patent, you benefits may derive from:

a) Selling your patent to someone who might make profit from it and has the resources to protect its legal rights on the patent

b) Commercial exploitation via royalties for licenses of the patent

c) Suing people who infringed your legal rights by using your patent without your permission (alone or with a sponsor)

On the other hand, if you don't patent your work, you will have no access to any of these benefits.

In addition, the worst thing that may happen to you is that someone steals your work, right? So, in that case, what other mechanism may help you to fight back better than a recognition of your ownership of the intellectual property with a patent.

Have you already thought of any other way to protect your work? Keeping it hidden doesn't seems like a very good plan, either...

Answer 7

I was in the same situation and wrote and submitted utility patent application myself. Unfortunately after "Alice" US supreme court decision virtually any algorithm could be qualified as"abstract idea", which happened in my case. With lawyer's help I rewrote the application to increase the chances and now waiting for a response from the USPTO. I requested the application unpublished so if it doesn't go through I can keep a trade secret. Good luck to you.