20 things you need to know about software patents

On July 31, 1790, Samuel Hopkins received the first patent for a process for making potash, an ingredient used in fertilizers. President George Washington signed the patent.

Since that day, more than 6 million patents have been issued.

Saw some potash / fertilizer the other day that I need to tell you about. I don’t watch a lot of TV, but I do enjoy Shark Tank. It seems like a lot of fun to me to be on the panel. I have great respect for anyone who is successful enough to be in a position to invest. That is what every entrepreneur works for … that freedom and those options.

With that said, the other day I saw some advice from “Shark” investor Barbara Corcoran that made me cringe and I wanted to post it as an addendum to her advice. You see, Barbara is not in the software world. Deals with real estate and products. In an interview with, he had the following to say about the biggest mistakes small businesses make:

“Spending money on patents and public relations. The correct dance steps are:

1) Make the product

2) Get some sales

3) Make the greats envy you and only then get a patent. “

At the end of the article, I have linked to that quote (mainly so it doesn’t go away)

I shuddered when I hit number 3 because this tip could really put some tech entrepreneurs in a very bad place. # 1 and # 2 are smart!

This is what I have learned during the process of patenting multiple pieces of technology:

1) You MUST get a patent attorney. No, you cannot do it yourself. No, your wife’s friend who is a lawyer can’t understand it. Patent attorneys are highly specialized. Save money and find a patent attorney.

2) No patent attorney will do. Most of them are as useless as the day is long when it comes to software or technology patents, but they will take your money anyway. Find a patent attorney who specializes in technology / software. If you need a recommendation, contact me.

3) Patent attorneys are federally licensed. If you are in Florida, you do not need to consult with a Florida attorney (which is unique).

4) Be prepared to write! If you think it’s as easy as taking your idea to a lawyer and asking them to write everything down, think again. No less than 10 pages of technical documentation, drawings and images were submitted for any of the patents I applied for. If you bring garbage to your lawyer, he will either produce an unsatisfactory patent or charge you a fortune … maybe both.

5) Use the patent attorney artists. The drawings may seem simplistic and cost about an additional $ 100 per image, but that’s another thing you shouldn’t try to do yourself unless you love rejection and wasted time.

6) Write your patent as broadly as possible. Your patent can be rejected and that’s okay. Go for more than you need … go big! You can reduce the patent and refine your final patentable piece based on feedback from the United States Patent and Trademark Office (USPTO). You can’t add items later if they weren’t there when you started. Do you want to increase your chances of obtaining a patent? Go for A LOT and adjust as you get feedback.

7) You MUST submit your patent idea BEFORE going to market. This is where Barbara’s advice is very dangerous. In the software world, you cannot patent something that is being used by the public. Once it is published, it is in the “public domain” unless you have filed your provisional patent.

8) Patent laws change daily according to court cases. Many people (including Mark Cuban) think that the ability to patent technology is detrimental to the evolution of technology. It is very possible that they will reject you.

9) You can get a provisional patent or a non-provisional patent. The definition of a provisional patent is as follows: According to United States patent law, a provisional application is a legal document filed with the United States Patent and Trademark Office (USPTO), which establishes a date of advance filing, but that does not become an issued document. patent unless the applicant files a regular non-provisional patent application within one year.

In short, a non-provisional is a “real patent.”

10) Obtaining a provisional patent is less expensive than a non-provisional patent. Include a patent search and secure your place in line. You can launch your product when you have your provisional patent date.

11) A non-provisional patent can take up to 5 years to be approved or rejected.

12) Most software patents are rejected because they are not mechanical or do not have a proprietary algorithm.

13) It is absolutely possible that you will be awarded a patent and then lose in court if someone infringes on your patent. Having a patent and being able to enforce that patent are two completely separate things.

14) When you file your patent, you are teaching the world how to make what you “invented”, accept that this has drawbacks too.

15) Applying for a US patent can cost up to $ 20,000.

16) Once you have issued your US patent, you have 1 year of protection / time to apply for any individual country where you want to be protected. The “Patent Cooperation Treaty” has 148 countries, which can be viewed here

17) Each country in which you apply for a patent will have its own filing fee. Nothing is free in the world of intellectual property.

18) If you are lucky enough to be granted a patent, that patent is granted for a period of 20 years … keeping in mind that “granted” does not mean “protected”.

19) Large companies (Apple / Google) have departments that do nothing but register patents throughout the year. As always, the little one is at a clear disadvantage. Barbara is right that being on the radar of the largest companies can be a good thing, but not in all cases. Big companies crush small companies all the time like it’s a sport.

20) You can choose to have your patent published or not published in the patent magazine distributed worldwide. There are pros (exposure) to getting published and cons (maybe getting scammed?) To choosing to publish. That is a choice you must make.

There you have it … what my experience with software patents has taught me. Barbara wasn’t talking about technology when she was quoted on patents, so be careful who you listen to on this topic … it could cost you a lot if your idea is good enough.