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Ask HN: where do you draw the patent research line?

15 points by stevejalim ↗ HN
[Clarification: In all of the below, I'm talking about patent-checking to guard against infringement of others' patents, rather than protecting my own stuff]

When you've got an idea you like and believe in, how much time should you dedicate to patent research before getting into proper planning, coding and all the rest of the fun stuff?

a) Lots, be exhaustive

b) Some [any estimates of how much?]

c) None, just get it out there

I ask because a couple of years ago, for a startup that didn't make it to market (for a reason totally unconnected with patents), I spent the best part of two soul-destroying months poring over lots and lots of chunky patent documents, looking for things that might block what we were trying to do.

After all that time, an IP lawyer friend of mine said (in more or less these words) 'Just get it out there and see if anyone complains, then deal with it'. I'm operating in the UK, too, which seems to have a more favourable (for me) view of the ridiculousness of [edit] some [/edit] software patents, too, in the sense that they're harder to enforce over here, I gather. So in the end, we just went ahead (but then got sunk by another issue, but that's a different story, dammit.)

So, I was just wondering what the HN community thinks about it all. Did you spend ages poring over patents before cutting any code, too?

15 comments

[ 96.3 ms ] story [ 416 ms ] thread
swombat
I'd go for (c).

If people sue you for infringement of an obscure patent, they'll only do it if they think you're successful enough to be worth suing. Even then, you win (as in, you've managed to build a successful product).

From the protection side, imho, if you have to rely on patents to protect your business, you're probably doing it wrong.

stevejalim
I get what you're saying, yeah. I'm not looking to protect my stuff via a patent (would rather just have a chunky customer base and be done with it), but wouldn't want to be blocked by someone else with a nitpicky patent about, say, videoconferencing or the like
pclark
From the protection side, imho, if you have to rely on patents to protect your business, you're probably doing it wrong.

Sucks to be ARM/Qualcomm/Broadcom/$ChipFirm right now.

cjg
Not quite sure why you lump ARM in with Qualcomm and Broadcom. I would think it would be great to be ARM right now with more than 10 billion ARM processors on the planet.
pclark
was just the first "big" hardware name that came to mind. (they're in my city)
swombat
I should have said, "If you have to rely on patents to protect your start-up, you're doing it wrong" (valid for 99% of start-ups).
sgrove
Back in my research days I was going to apply for a certain patent, and spoke to a lawyer at the university about monetizing it. He ended up telling me that it can actually be dangerous to be too exhaustive in your research. You want to do a general search of a few databases of your general idea, but if you're very concerned about the idea you'll need to sanitize it by have someone else look and inform you if they find anything that's specifically applies to you.

If you find something that might apply to you, and it could be shown that you knew of the patent before you started (e.g. you told potential investors "There are only a few patents that could hold us up, like...[blah]...but we're confident it doesn't apply to us" and continued to try to monetize it, you could be up for punitive damages. Painful indeed.

Have a knowledgeable friend who you trust and would look out for you do the searching. They'll probably put in just the right amount of time - quite a bit, because they care about you, but not so much that it would impact them too much - and you're free to claim ignorance if anything comes up later.

If anyone knows anything wrong with this advice, it would be great to knock some sense into me at this point!

stevejalim
Thanks for the view. In that light, one upside to my plan (no investment other than sweat from me and maybe a couple of others), is that if I take on the risk, all I'd be risking is lost time/opportunity cost, rather than venture cash.
10ren
c) None, just get it out there

At first I thought you were doing a patent search to apply for a patent - which makes sense. But on rereading, I think you're just checking to be sure that you're not infringing on anyone else's patents. I agree with your IP friend: if you're not going to patent your invention - there's no point searching at all (and there's even the risk of triple punitive damages in some jurisdictions, as sgrove noted.)

If you infringe on someone's patent (and they care), you can probably code around it. But unless you are competing directly with their product, they won't care. Here's pg's take on it:

What does that mean in practice? We tell the startups we fund not to worry about infringing patents, because startups rarely get sued for patent infringement. There are only two reasons someone might sue you: for money, or to prevent you from competing with them. Startups are too poor to be worth suing for money. And in practice they don't seem to get sued much by competitors, either. They don't get sued by other startups because (a) patent suits are an expensive distraction, and (b) since the other startups are as young as they are, their patents probably haven't issued yet. [3] Nor do startups, at least in the software business, seem to get sued much by established competitors. Despite all the patents Microsoft holds, I don't know of an instance where they sued a startup for patent infringement. Companies like Microsoft and Oracle don't win by winning lawsuits. That's too uncertain. They win by locking competitors out of their sales channels. If you do manage to threaten them, they're more likely to buy you than sue you. http://www.paulgraham.com/softwarepatents.html

stevejalim
Thanks 10ren - that's interesting (and reassuring) to hear. Kinda the answer I was hoping for, in fact.
10ren
I edited out part of my comment where I said that doing that month's research was a "fear-based approach".

I deleted it because I didn't think it added anything; but today I noticed that some things I am doing are fear-based in a similar way - what if the work I'm doing isn't as new as I hope it is? And I noticed I was afraid... because checking it out would be an exhausting distraction - and not guaranteed to find it anyway. So I'm a sitting duck! My comment to you helped me to notice that I was taking a fear-based approach. Hence this reply to reinstate it.

Fears, even if accurate, are not particularly helpful to a startup.

stevejalim
Yeah, I agree about the fear-based thing. I certainly was operating from that POV for the startup I was talking about above - mainly cos it was my first experiences of it all, etc, and it was an idea I'd been sat on for years and was emotionally very close to it. I am definitely operating more out of the headspace of being propelled by excitement/a wish to make things happen these days, tho do still notice the fear factor creeping in from time to time... :o)
frankj
Before hiring a lawyer I would check out Patents.com and do a quick search for my space and see if there is anything out there that is adjacent to my IP. This costs nothing and gives me a good idea of what others are thinking.