* Will SCOTUS Break Patent Law With Bilski Case?

Patent law is broken.

Attention People of Earth:

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.

In many cases, filing a patent application is not worth it. Especially for startups. Your money and time would be better spent hiring programmers, marketers, and a sales force.

If you must spend your IP budget on something, then do this:

  • Trademarks – Trademarks last as long as they are used. Search the USPTO’s trademark database to see which of your trademarks (company names, products, services, taglines, slogans) need to be registered. Then register them.
  • Domain Names – Domains last forever (as long as you pay the trivial annual renewal fee). Use the DomainTools domain typo search tool to see which of your domain names have been registered by cybersquatters. If you haven’t registered all of your trademarks (and all common misspellings thereof) as domain names, then do it now. Then regain control of the domains that are currently out of your control (via UDRP or otherwise).
  • Usernames – Usernames, on social networking sites (such as LinkedIn, Facebook, and Twitter) and the like, last as long as those companies last. Or until the companies are acquired by a clueless monopoly. If your brands have been Twittersquatted, then try to get them back. Use claim.io, namechk.com, and/or usernamez.com to search for the availability of your username on multiple social networks.

If you’ve read all of this and still want to proceed with patents, then go for it. Clock Tower Law Group is not the right law firm for every company, but it is the right firm for companies who appreciate that we tell it like it is.

Erik J. Heels writes about technology, law, baseball, and rock ‘n’ roll. He is @ErikJHeels on Twitter, where he tells it like it is.


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