How Do Patents REALLY Work?

by Todd Bailey
Montreal, Quebec - May 29, 2023
IP without Jargon

Forget the legalese.  How do patents really work?  Every entrepreneur needs to know 10 things about patents:

WHY?  Entrepreneurs play a huge role in building their own strong patent, especially in AI.  The patent expert is good at the legal stuff, but way more than legal expertise is needed! Entrepreneurs must also make good decisions about patenting – and that requires appreciating critical business realities.

“The real role of patents, for most startups, is as an element of the mating dance with acquirers.” But this requires “a fairly solid patent”.
-Paul Graham, founder, Y Combinator.

But what is a “fairly solid patent”?  And how does a startup go about getting one?

There are 10 essential principles to appreciate, especially in AI & software:

1. Patents are not about technology! Solid patents cover how technology solves a problem.

2. The bar for getting a patent is lower than you think. Anything new and technical can potentially be patented.

3. All patents are not the same. For a given idea, two competent experts could produce different patents. The words matter.

4. Patents include a detailed invention description that gets published. So, patents make most sense for stuff that will be exposed to the public in use.

5. But that invention description does not protect anything! Instead, you must define, in one sentence (a claim), one thing or combination to protect.

6. Infringement = someone uses all ingredients of that sentence (claim).  If they replicate your idea without using all the ingredients, they won’t infringe.

7. AI and software can be patented – but it’s more difficult than hardware, because there are more possible ways to write the sentence (claim) and miss the business target.

8. Patenting is a negotiation with the patent office. Like any negotiation, if you lose sight of your objective or give in to fatigue, the result won’t be what you need.

9. When to file a patent requires judgment. Once you file, you can’t update or improve the patent.  So, filing later has benefits, but so does filing earlier.  (See the carrousel for more).

10. Patents can’t stop copying. Even solid patents can be designed around, and some people aren’t afraid to infringe. So, keep expectations realistic.

BONUS: Patents cost time & money, plus there are strategic costs, like publication.  If your goal is to SAVE money, it’s better not to file, because cutting corners results in weak patents (cost >> benefit).

Like all guiding principles, these simplified principles have nuances and exceptions.

But developing a business-level knowledge of IP tools like patents will help you make better decisions for your business.

Made possible through the
financial support of
Gouvernement du Québec
Gouvernement du Canada

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