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Comment by paulie_a | Hacker News Reader

I looked into getting a patent and realized they are basically useless. Why bother for the cost and enforcement?

> Why bother for the cost and enforcement?

The cost is not a big deal. Spending 10's of thousands for a product earning millions is not a big deal.

However enforcement is ridiculous. One of my patents was for a very unique product idea that no other sane person would come up with. One of our distributors announced an exact copy product.

We called in lawyers and they agreed we had an excellent case. At the end of the meeting they said they'd need a million dollar retainer. It wasn't worth it. We checked and couldn't get a better price.

All in all the experience has spoiled me on the idea of ever patenting anything again.

Since there has been interest in my story I'll tell another part of it. When we first discovered the distributor was copying us we sent them a letter telling them we had a patent and to stop. It did no good.

When we met with the lawyers they told us we made a big mistake. We were admitting we knew about the infringement. This sealed the issue of losing the patent. If we had acted ignorant we could have argued later we didn't know about it.

So, the strategy the lawyers imply is to secretly observe the infringer's sales volume, waiting until accrued damages exceed the 1 million litigation cost, but not so far as to exceed the infringer's liquidation value, then sue? And expect to forego triple damages, unless in discovery you can turn up an internal memo proving the infringement was knowing? My head begins to spin ...

For the most part the purpose of getting patents is to protect yourself from litigation from other companies. So when they try to sue you go back to them and say, "We might be infringing on this, but we believe you are infringing on our patents X, Y, and Z. How about we call it even and license the patents to each other?"

The other benefit is that having a large patent portfolio shows that your company has value to potential buyers.

Do you mean damages could not possibly have been enough to pay back your legal fees -- or that up-front capital for enforcement, plus risk of delay were too great?

If the latter, what about selling both patent and product tooling to someone with deep enough pockets to go after the infringer?

> Do you mean damages could not possibly have been enough to pay back your legal fees

Unfortunately yes. The infringer was not big enough to be worth it. However, that meant the patent was then worthless. If you don't enforce a patent you lose it.

Patents only seem to be worth it for large companies and trolls.

P.S. I have always been fascinated by a contrary story. The guy that invented the intermittent window wiper got a patent and the car companies ignored him for a very long time. He sued over and over with no lawyers and eventually got a huge sum of money. Unfortunately he was quite old by then.

> If you don't enforce a patent you lose it.

Is this a European thing? I've heard of this for trademarks in the US, but never for patents.

Don't mistake superstitions for reality. Even lawyers are terrible for this.

There is a general principle in law called estoppel, which means that if you tacitly allow something, you may not later be able to act as though you didn't. With patents that could mean that if you tell Big Yellow Widgets it's fine to make a thing that's clearly your patented Foozablip, but then after a year you say hey, Big Yellow, we just decided you owe us $50 per unit for the patent, estoppel might mean that's not OK. But it wouldn't mean Big Yellow can just keep making them without paying now you've decided on a fee, or that everybody else can join in too. Your patent still applies, it would just be unfair for it to override your previous OK and cost Big Yellow all that money.

> Even lawyers are terrible for this.

That would be surprising to me but I'm just quoting the lawyers. They might have just simplified it.

You couldn’t get an IP ambulance chaser to do it on contingency?

Exactly. honestly why even spend the ten grand if you can't reasonably enforce it. What's the point?

For smaller concerns, it is one of the few mechanisms that larger competitors actually respect. A small patent portfolio can form a basis for negotiations of all kinds that simply wouldn't take place otherwise.

Yes, the first thing VCs ask is whether you have patents.

This is more a critique of the legal system at large than the patent system in particular, isn’t it? And, truth is, if it’s really truly a slam dunk, no questions asked, clear cut infringement, just go pro se. But that’s not the case pretty much ever, so yeah, you need to pay the people who will help you.

Different companies have different levels of risk tolerance. I've worked at companies whose tolerance for risk is so low that they don't even touch anything that might be covered by a competitor's patent--even if that patent is clearly so broad that it wouldn't stand up in court, or is invalidated by the existence of prior art. The fact that it was written on a patent meant that we needed to circumvent their claims entirely. So if you were a competitor, it was definitely in your best interest to patent as much as you can... Even if you had no plans to enforce them.

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