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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?

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    Btw. congrats on getting an ask patents question into the hnq list! – DonQuiKong May 24 '17 at 15:48
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    You might consider keeping the algorithms as a Trade Secret. – Eric S♦ May 24 '17 at 17:07
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    @EricShain I was thinking about doing this, but I've recently been advised that large corporations have the resources to reverse engineer software, to find out how it works. So a trade secret might not stay a secret for long anyway. It's a tough decision! – DonkeyBoy May 25 '17 at 2:51
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    Have you spoken with a patent lawyer who specializes in your field? It's not uncommon for a first consultation to be free. One option is to file a provisional patent, which can help establish precedence yet allow you time for further work. uspto.gov/custom-page/provisional I would have other questions about your plans for revenue generation and/or plans to find investors, both of which are relevant to the discussion. – Rethunk May 25 '17 at 16:20
  • @Rethunk I did actually have an initial consultation but part-way through, I lost faith in the lawyer because he kept insisting that I pay a full patent fee for the provisional and vice versa. He tried to make it sound like it would be to my advantage, but when I pressed him on the point, he was forced to admit that his motivation was purely to benefit himself only. I just don't trust any particular lawyer well enough to be sure that this won't happen again. – DonkeyBoy May 26 '17 at 1:40
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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.

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    To emphasize the selling point, patent trolls often buy good patents - while I personally don't agree with their business assumptions, when it comes down to either not being able enforce a patent or sell it to a troll, I'd advise the latter. – DonQuiKong May 24 '17 at 9:43
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    There are also attorneys (at least in the US) that take on cases on a contingency basis. That is, they only get paid if they win. Of course if the win they get paid a significant percentage of the award. – Eric S♦ May 24 '17 at 11:13
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    Also, the existence of a patent would generally prevent an honest person from infringing it (if they knew of the patent). And you might have more funding to enforce it by the time someone infringes it. – John B. Lambe May 24 '17 at 12:24
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    "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." A patent bear's the applicant's name, and generally it would be easy to find out quite a few details about the applicant's business (if any), funding, work experience, prominence in the field, and so on. This assumes the application survives examination, and also that a competitor sees any value/threat in the patent. – Rethunk May 25 '17 at 16:29
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    Also, this strikes me as unclear and possibly misleading: "you only get one chance to patent something before it's forever unpatentable" The timing of a provisional application and/or full application and the time when a product is offered for sale allow more than "one chance" to patent an invention. – Rethunk May 25 '17 at 16:37
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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.

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    That's another very good point - I can confirm that mutual infringement is often tolerated in fear of costful lawsuits that would end as a lose - lose. – DonQuiKong May 24 '17 at 15:46
  • @Pete P This is actually bad for a little guy like me, if you think about it. To go back to your metaphor of nuclear game theory, I don't have any nukes, so unless I can form an alliance with one of the superpowers, any one of them will bully me into submission – DonkeyBoy May 25 '17 at 6:55
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    Mutually Assured Destruction using patents? That's both awesome and sad at the same time. – Mast May 25 '17 at 8:54
  • @Mast - pbs.twimg.com/media/DAglMLDXkAE1RUa.jpg – Eric May 25 '17 at 15:35
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    @DonkeyBoy - the point is, if you have the patent, then they know that if they start to bully you, you can go find a superpower to cozy up to then. It gives you at least a little leverage, when before you had none, and that means that bullying you probably isn't worth it. – Ben Barden May 25 '17 at 15:41
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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!

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    If you look at my original question, you will see that I am specifically talking about computer code. That is not abstract. – DonkeyBoy May 25 '17 at 4:44
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    @DonkeyBoy Computer code is not much different than just writing it down in clear prose. It is only creating a concrete representation of the algorithm, and anybody knowing the algorithm could do that. So that's nothing you can protect. – Volker Siegel May 25 '17 at 5:34
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    @DonkeyBoy The usual "workaround" to convert an algorithm into something concrete enough to be patented is to combine it with some piece of hardware it interacts with. – Volker Siegel May 25 '17 at 5:36
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    @Gewure afaik the patent you are talking about was actually a design patent, which is specifically made to patent designs (not only in the US). – DonQuiKong May 25 '17 at 9:47
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    @Gewure And the reason there are more patent lawsuits in the US in almost entirely to do with legal system, market size and expected returns. Treble damages plus jury awards in a market of 300 million people is much more lucrative than separate suits in the UK, France and Germany with judicially-set damages. That the US has historically had lower examination standards is relevant, but barely, since patentability is much more throughly contested during litigation. – Maca May 29 '17 at 11:21
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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.

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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...

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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.

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