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I know all of you are really well versed with patents here and I am a completely novice . Me and My team have come up with a working system which implements behavioral bio-metric identification system , which can be used practically anywhere.

We have checked extensively but have not found a patent similar to what we are doing. We are also not infringing any patent which has not already expired.

We are in Europe and since our system involves a particular software method on a particular hardware, we are confused where to register the patent? US or Europe?

Which one is easier and less expensive if we hire a lawyer? Also should we register under electronic hardware or software? I heard Software patents are almost never granted.

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We are confused where to register the patent? US or Europe?

Patents are territorial. If you want to prevent competitors from using your invention in the US, then you'll need a US patent. If you want to prevent competitors from using your invention in Europe, then you'll need a European patent. Similarly for any other country you're interested in.

The decision about where to obtain a patent is a complex one. It generally involves considering market potential, where your competitors are, and the cost of obtaining and maintaining the patent in each country. If you never expect to sell your product in the US, and you don't have any competitors there, it probably doesn't make sense to get a US patent.

Most businesses would aim for the US and Europe as a first stage, due to the size and wealth of the respective markets. Then, if the business wants a bit more protection, generally China and Japan as a second stage. But it very much depends on what your business plan is.

In terms of procedure, typically you would first apply in your home country (either with the European Patent Office or a national one, such as the UK Intellectual Property Office), then within the next year apply in other countries (or file a PCT, to get an extra 18 months to choose other countries).

Which one is easier and less expensive if we hire a lawyer?

Neither the US or Europe is particularly easier than the other these days. The requirements for patentability are reasonably similar. The cost of an attorney for each is pretty similar too.

Typically you would use an attorney in your country. They would act as a go-between for any foreign attorneys you might need. While this is more expensive than engaging all the attorneys yourself, it makes the whole process a lot easier to manage for an inexperienced inventor.

Should we register under electronic hardware or software? I heard Software patents are almost never granted.

You don't really register under a particular category. You (or preferably, your attorney) drafts claims to cover your invention. If your invention is in software, then you would have claims to software. If your invention is in hardware, you would have claims to hardware.

Software patents are grantable if the claimed invention has a technical effect (in Europe) or is non-abstract (in the US). This generally requires that there is an effect occuring outside the software being executed. So software to better use memory in the computer is fine (since it affects the computer itself), but software to automate an algorithm is not (since it doesn't really do anything other than produce some data).

  • Nice answer! Re: "automate an algorithm is not (since it doesn't really do anything other than produce some data)" is potentially a very flawed view, in that we're in an information era, and that output can constitute a valuable, tangible product, promoting industry and providing social benefit. That said, it is my understanding that this luddish characterization (the wheels of govt. bureaucracy grind slowly indeed;) is a major factor in algorithm companies going the "Trade Secrets" route. I'd posit that Google's search algorithm is likely more valuable than any physical mechanism. – DukeZhou Jan 11 '18 at 22:19
  • although, trade secrets re: Google's search algorithm come in handy in that public knowledge of the function diminishes the value of the IP. But that is not the case for all algorithms! – DukeZhou Jan 11 '18 at 22:23
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    @DukeZhou I don't disagree with you about the social benefits of information technology, and have no view on whether methods of determining some data should be patentable. However, I merely made that comment from the point of view of the USPTO and EPO (and perhaps even most others patent offices), that such an approach is not enough to be patentable. – Maca Jan 12 '18 at 0:01
  • Absolutely! (And please don't take my inability to not soapbox as a critique of your excellent answer;) I did want to mention the Trade Secrets route. Q: My general impression re: Hardware vs. Software patents is that, in the current climate, Hardware patent would be much less likely to get knocked back. To the degree that it's possible to gauge, would you potentially concur? – DukeZhou Jan 12 '18 at 18:00
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    @DukeZhou I would agree, though it of course depends on the nature of the hardware. That is, it's not enough to just say a processor and some memory with instructions. But if you're claimed a whole new machine with certain components, then certainly there's no chance that that could be written off as being abstract: it's literally a new machine after all. – Maca Jan 12 '18 at 23:24

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