legal, patentI’m on a startup team that’s developing clever audio-network solutions, and patents are really starting to annoy me. We come up with all these ideas on our own or otherwise see the ideas existing on the marketplace for a long time, but then we do some research and find that patents have been granted for many of them. I would argue that these patents are obvious and thus invalid, but for some reason (broken patent system?) they’ve been granted anyway.
Certain that this is a problem many startups face, how is this issue usually dealt with? Do the typically cash-strapped startups generally:
Patents don’t cover what they think you cover.
I am a patent attorney, and it makes me cringe every time I see a news article claiming that Amazon patented X or Google patented Y. The news articles are never right.
Patents have three sections:
The claims are the numbered sentences at the end of the patent and there are usually about 20. The claims are written in an awkward language and are hard to understand. To understand what a patent covers, you need to read the patent and spend a couple hours deciphering what the claims mean.
The figures and text description may broadly describe some kind of audio-network solution, but the patent doesn’t cover that. The patents covers only the invention precisely described by the claims.
Nearly all patents cover some extremely small incremental improvement to existing technology. After all, that is how invention works. It is rare to have a patent that gives you broad protection over an entire product.
Many patents are likely invalid
Even though many patents cover less than you think they do, many patents are still likely invalid. The patent examiners are overworked and underpaid. Although they are stricter than 10 years ago, many patents get approved that shouldn’t have been. Invalidating a patent is challenging because they have a legal “presumption of validity” so it will cost you a lot of money to invalidate a patent.
Most startups ignore other patents
As a startup, you should be focusing on getting patents for your own product and you should not worry about other companies’ patents.
It would cost you a ridiculous amount of money to (i) search for relevant patents, (ii) determine if they cover your product, (iii) determine if they are valid, and (iv) negotiate some agreement with the patent owner. If you did all that, most patent owners would likely refuse to license you or charge you an enormous fee, especially if they know or think that your product depends on a license.
Basically, don’t go looking for trouble.
You are right that small startups don’t have to worry about accusations of patent infringement. If you don’t have a lot of revenue, no one is going to waste their time suing you for patent infringement.
If you do become successful and have a lot of revenue, the question is not “if” but “when” you will be sued for patent infringement. All successful companies are sued for patent infringement. Often, the patent you are being sued on has very little to do with the main idea of your product, but some silly side thing like how you get payments or do customer support.
Patents are just a part of doing business, and you will have to deal with that when your company starts making money. You will then hopefully have the resources to deal with it.
Until then, spend all your time figuring out how to make money and don’t worry about other people’s patents.
I wonder if the best approach is to focus on verifying whether the patent is invalid. Either through:
You can then move forward, aware that you're taking some risk on with a patent trolling case, but with a bit of comfort that you'd have a strong case for invalidating the patent if they lay a claim against you.
It may also be a point that whilst you're a small startup with little cash, you can probably fly under the radar. Once you're bigger and have more cash / financing power, you could get more legal services to verify the invalidity, or otherwise pay the royalties that were actually due.
If you have an idea for a really ingenious or exciting product you probably should not expend energy over patents even if they appear to overlap somewhat with your idea, unless a patent obviously matches your idea exactly. As mentioned in another answer, you won’t be drawn into an expensive patent suit unless your product is financially very successful. And if it is financially very successful you are likely to be drawn into some type of legal exchange no matter what. Keep in mind however that if your idea is successful, if it can be shown that you had knowledge of a particular patent and infringed it anyway that it would not weigh in your favor.
If you are especially concerned about a particular patent and would like to study what is actually protected by it then you will want to study the CLAIMS section. That is what is actually protected by the patent. Loosely speaking, the rest of the patent document provides background and context for the claims. Learning how to read the claims will help you sort through which patents actually do, or do not already have your idea covered.
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