In the fast-paced, cutthroat world of technology innovation, intellectual property protection can be your competitive edge against rivals, big and small. But first, you have to identify the right type of protection for your invention.
And since you’re in the tech sector, you’re doing your homework on software patents vs. hardware patents.
Here’s a look at what they are, how they work, and when it’s worth pursuing one.
What is a Patent?
First, it helps to understand the basics.
A patent is a right granted to an inventor by a sovereign entity (the United States Patent and Trademark Office, for example). With a patent in hand, an inventor has the exclusive right to make, sell, use, and/or import an item within the sovereign territory (the United States, for example). This is not permanent protection–it only lasts for a set number of years, determined based on the type of patent.
There are three types of patents:
- Utility patents
- Design patents
- Plant patents
What Does a Patent Protect?
What a patent protects depends on the type of patent in question.
A utility patent is what most people think of when they imagine patents. It covers a new or improved product, process, or machine.
A design patent is a form of legal protection for the unique visual aspects of a manufactured item. This is not to be confused with a utility patent, which protects how an item functions. One of the most famous design patents was issued for the Statue of Liberty.
A plant patent protects a new and unique plant’s characteristics from being copied, sold, or used by competitors, which is highly useful in the agriculture industry, for example.
Patents Are Not Created Equal
It is worth noting that not all patents are created equal. The level of scrutiny you’ll receive from patent offices around the world will vary depending on jurisdiction and patent type. The protection you get from a patent is limited based on the type of patent and who issued it–your U.S. patent will not protect you in the European Union, for example. Also, the enforceability and the amount of damages you might expect from asserting your utility patent against a competitor would be very different from asserting a design patent.
What are Software and Hardware Patents?
Software patents and hardware patents are considered subsets of utility patents. That said, the relative value of a software patent compared to a hardware patent is an issue of an increasingly contentious debate in the tech world.
As related to the tech industry, a hardware patent would cover any physical component of a system, such as unique aspects of a circuit board, ICs, or other electronics.
A software patent is a whole different ball of wax.
First, some people debate whether software would even fall under patentable subject matter within the utility patent category as software might be considered essentially a bunch of algorithms. This issue of patent eligibility of software makes software patent applications extremely difficult to write and pursue. There’s also some debate about whether to protect software under a patent or copyright, since technically software could fall under both.
Second, software patents have gotten a bad rap because of bad behavior by some owners of software patents that have used those patents as tools to sue other companies. Many of those early software patents that were used in litigation have been invalidated by the courts of by various patent offices.
Third, there are those in the tech industry that consider software patents to be a complete waste of time and money. You can try searching for the terms “software patents are evil” and see an extensive list of results.
Lastly, the timing of software product development is at least an order of magnitude faster than the patent prosecution process. Whereas an efficient developer can create an app, sell a million copies of the product, and exit the business within a few months, patent prosecution is at least a one to five year commitment. So, by the time you get a software patent application filed and you get an acknowledgement from the patent office, you might be onto a completely different product business.
So…Are Software Patents Worth It?
Even so, software patents can be worth pursuing, especially in tandem with hardware patent applications. If you truly do have a revolutionary invention that involves software, it can still be protected by patents, if properly written.
Whether or not to file for patent protection for your software is also very much a business decision. Do others in your industry file patent applications related to software? Do potential investors or partners care about software patents? Do your competitors sue each other using software patents? If the answer to any of these questions is “YES,” then you should look into software patent protection for your own products.
Hey, we get it. Patents are hard. A lot of the time, they’re a headache–and an expensive one at that. But they’re also your competitive edge to take your idea from a dream to a profitable product.
Our job is to deliver peace of mind, with patent services at all stages of the innovation process so that you can get the protection you need and focus on making your dream a reality. Sound good? Then get in touch to learn how we can help protect your best idea.
