The Joel on Software Discussion Group (CLOSED)

Just a quick question to anyone with experience in this area.  We've put together a unique web service.  There is nothing like it.

Can you patent SaaS products?

You can patent anything in the US if you word it correctly.

Talk to a patent lawyer and prepare to pay big money.

Google's PageRank is patented - so the simple answer would seem to be "yes".

You can patent pretty much anything these days as long as you're able to pay for it. When I looked into obtaining a US patent several years ago I was told to budget $20k for the patent process (1-2 years), plus another $5k annually for "patent maintenance" if the patent was actually granted. Only then could I have the "privilege" of suing those who infringe on my patent - by paying outrageous attorney and court fees, of course.

You can do this process yourself, but you would still have to pay attorneys to fight infringement for you. At that point the cost of obtaining the patent is the cheap part anyway, and by doing the patent process yourself you'll likely just undermine the strength of your IP claims.

In short - you better have a guaranteed multi-million dollar idea before even thinking about a patent.

If you just want to do some research, try the patent section of the USPTO website: www.uspto.gov

"In short - you better have a guaranteed multi-million dollar idea before even thinking about a patent."

He doesn't have a multi million dollar idea. Getting a patent is just a tool to keep competitors away...sort of like purchasing an instant monopoly in a can.

"We've put together a unique web service.  There is nothing like it."

With a probability of 99,9999999 or so percent, it is just another permutation of some combined decades-old ideas and some "business logic" transfered from reality (where it was used for centuries) into virtuality. Nothing new to see here -- go along.

Also, very few patents by "little guys" can stand up against a major company that wants to use the technology and doesn't want to pay you.

They will gladly expand millions searching the prior art.

"a patent is just a tool to keep competitors away"

A patent does no guarantee that others wont try to use your idea. Beyond the expense of obtaining a patent you will need the resources (financial and otherwise) to both:

1) Keep a constant vigil for potential violations of your patent,

2) Use legal means to enforce your patent.

If you don't have the time and money to do that, then the patent has no value.

You will also need to consider the breadth of your patent. Registering your patent in a particular country does no tautomatically make it enforceable world-wide.

Be very carful who knows about whatever it is that you want to patent. There are very strong rules about applying for the patent in a given amount of time after anyone, other than the original developer, sees it. See a patent lawer fast (and take a bunch of money).

>> There are very strong rules about applying for the patent in a given amount of time after anyone, other than the original developer, sees it.

Not exactly. Documentation is the key here, not being the first one to apply for the patent. As long as you can document being the first to "discover" then that's all you need. In fact, you can invalidate someone's patent by simply proving, through documentation, that you own prior art (IE, you or someone else "invented" it first). This is why chemists and researches at big pharma document everything they do in notebooks that are then guarded by the pharma company like they were gold.

The only thing that plays to your point is that you should be very careful not to make the invention public. Once the IP enters the public domain it is no longer patentable. You can tell anyone you want about your IP so long as you have some sort of expectation of privacy in place, like an NDA or similar.

I think that the local staff knowing about the details of hte patent would be OK, but do not give details out here. I seem to remember something about applying with in one year that applies here.

>> I seem to remember something about applying with in one year that applies here.

I think there is a time limit to how long you can use the term "patent pending", but I don't remember the precise details. In any case you're right that no details should be divulged publicly because that would definitely invalidate a patent claim.

>> I seem to remember something about applying with in one year that applies here.

Now that I think about it I do remember something about having 1 year to file for a patent once the IP is has been made public. Heck what do I know...it cost me thousands in attorney fees just to find out that patents are a big-boys game in the first place.

It can actually make sense to get a patent even if you never intend to use it, offensively or even defensively.  For some reason, they tend to increase the price of a company when it gets acquired.  Not a make or break deal, but it can help.

Defensive patents can be useful if somebody sues you.  It is (as people here have suggested) quite easy to get a pretty obvious patent, so if you and someone else are working roughly in the same space, you'll be doing similar things.  If you have some patents, when they sue you, you can sue them back.  Everyone loses, so it's a deterrent.

Well, there are a few winners... they seem to be the only ones who actually like this system, because it is wonderfully profitable for them.  It's so obvious who they are that I'm not going to bother saying it.

But if you're playing to win, you may have to hold your nose and get some patents.

It's always nice to see the input from you all.  Thank you.  Plenty of food for thought.

It is pretty easy to see how having a patent would then have you spending your time in court battles.  I don't really want that.  I just don't want to be the guy listening to everyone say "I can't BELIEVE you didn't get a patent!"

So it's really a "fighting not to lose" approach vs. offensive in nature.  Just want to make sure I don't "not do" the right thing.........

Thanks for this insight all.

You shouldn't understimate the cost and time involved in applying for a patent - time and money that could well be better spent actually improving your product.

Having a patent also doesn't mean that it is enforceable (e.g. my name is on a European patent but software patents aren't really enforceable in the EU).

VCs and lawyers seem to like patents - but they would!

One of the biggest advantages of having a patent is that you can trade use of your patent for "rights to use" someone else's patent. This is handy when they sue you for using their, othewise, usless patent. Even if your patent is less than a big money maker. (It will still be a big money coster.)

@The Original Henry

>> Documentation is the key here, not being the first one to apply for the patent. As long as you can document being the first to "discover" then that's all you need.

US only, as far as I know.  The rest of the world works on "first to make an application at the patent office"

From the initial filing you then have one year to file in all the other countries** you want claiming the priority of the original filing date.

** all countries that are signatories to the relevant treaty, but its all the main ones.