Navigating Patent Law

From former USPTO Director Andrei Iancu: "The Trump administration will soon announce new leadership at the U.S. Patent and Trademark Office, the relatively low-profile but hugely influential federal agency that evaluates patent applications and sets intellectual property policies that affect the entire economy. The next USPTO director will have many issues to address, not least of which will be the loud agitation of activists who believe that the USPTO issues too many low-quality patents. But before federal policymakers cave to these activists and impose new regulations to crack down on the supposed torrent of “bad patents,” they would do well to recognize one crucial fact: the existence of a patent quality crisis is contradicted by the data." "Patents dramatically improve the odds of a company being able to take its invention to market. Startups that own a patent are 47% more likely to raise venture capital funding and 84% more likely to be acquired; the temporary market exclusivity conferred by a patent helps assure potential investors that they’ll be able to earn a return." "This leads to thousands of meritorious inventions being discarded each year for no good reason. It’s economic self-sabotage. China currently leads America in 37 out of 44 critical and emerging technologies, according to a recent study. Regaining the technological lead will require the United States to harness all the contributions its inventors make, not just some of them. That cannot happen without a robust intellectual property system." "The United States stacks up well against our peers when it comes to keeping out “bad patents.” But to succeed in the battle for 21st century technological supremacy, we’ll also need to ensure that we do not keep out good patents. The incoming administration and USPTO leadership can achieve this by strengthening patent protections and rejecting false narratives about the prevalence of low-quality patents." https://lnkd.in/gPH2f92C Originally published in The Well News with co-author David Kappos https://lnkd.in/g5pcWKjM USPTO, Andrei Iancu, The Richmond Observer, U.S. Office of Personnel Management (OPM), Office of Management and Budget, #fork, #patent

𝗗𝗶𝗱 𝘆𝗼𝘂 𝗸𝗻𝗼𝘄 𝘁𝗵𝗮𝘁 𝗼𝘃𝗲𝗿 𝗵𝗮𝗹𝗳 𝗼𝗳 𝗮𝗹𝗹 𝗨.𝗦. 𝗽𝗮𝘁𝗲𝗻𝘁𝘀 𝗮𝗿𝗲 𝘀𝗼𝗳𝘁𝘄𝗮𝗿𝗲-𝗿𝗲𝗹𝗮𝘁𝗲𝗱? Yet I regularly hear tech founders and executives confidently declare, "Software can't be patented." This disconnect represents one of the most persistent and damaging myths in intellectual property today. The truth is that software absolutely can be patented. The confusion stems not from any prohibition against software patents, but rather from the challenges in demonstrating that software inventions satisfy the legal requirement of "patent eligibility." After nearly 30 years of specializing in software patents, I've guided countless clients through this seemingly contradictory landscape. I've witnessed firsthand how companies that believe the "software can't be patented" myth surrender valuable competitive advantages, while those who understand the nuances secure powerful market positions. Over the next few weeks, I'll be sharing a series of posts to demystify patent eligibility for software innovations. I'll reveal strategies I've developed and refined over three decades that have helped my clients secure thousands of software patents—even in areas where conventional wisdom suggested patents were impossible. Some common misconceptions I'll be tackling: • "Only hardware + software combinations can be patented" (Not true!) • "AI algorithms are inherently unpatentable abstract ideas" (Also not true!) • "After the Alice decision, software patents are effectively dead" (Emphatically not true!) Whether you're a tech founder, executive, investor, or developer, understanding when and how software can be patented is critical to maximizing the value of your intellectual property. Stay tuned for my next post, where I'll break down patent eligibility in plain English, explaining how the constitutional foundation of "useful arts" applies to modern software innovations. While this series will primarily focus on patent eligibility under U.S. law, other jurisdictions have similar requirements. Much of what I'll discuss can be adapted to be useful for obtaining patents in countries throughout the world. The principles of demonstrating technical character and avoiding pure abstractions have widespread application, even as specific legal tests may differ. Have you encountered resistance or confusion when trying to patent software innovations? Share your experience in the comments. #patents #softwarepatents #intellectualproperty #patenteligibility

Patents aren’t just about innovation. They’re about persistence (and money). At LOOMIA, the hardest part of getting patents approved hasn’t been proving our technology works. It’s been arguing with the patent office over technical distinctions. It’s a process of: ↳ Constant back-and-forth ↳ Fine-tuning claims ↳ proving uniqueness (All while costs pile up) The biggest challenge? ↳ Global patenting. Protecting an idea across multiple countries is expensive. You don’t just file once... you file in every major market, each with its own legal hurdles. The reality? Many great ideas never get patented. Not because they aren’t innovative, but because the process is long, costly, and exhausting. If you’ve gone through the patenting process, what’s one thing you wish you knew before you started?

🎯 Gotcha! Why Filing Without a Patent Attorney Could Be a Big Mistake 🚨 Let’s talk about the Dunning-Kruger Effect – that thing where people don’t know what they don’t know but are super confident anyway. Filing your own patent? The perfect example. You read a blog post, watched a video, and think, “How hard can this be?” Spoiler alert: VERY. 😅 Here’s why skipping a patent attorney isn’t just risky—it’s potentially disastrous. 💥 1️⃣ The Non-Provisional Trap 🕳️ You file a non-provisional patent thinking, “I’ve got this!” 🎉 But: • Your claims have too many dependencies 🙈 • Your drawings are blurry or incomplete 😬 • You fill out forms incorrectly or cite prior applications wrong 🧐 Result? Delays, rejection, or worse—no filing date. Fixing these mistakes? A nightmare. You could lose thousands and never even see an examiner. 2️⃣ IDS: The Silent Killer ⚠️ Forget to disclose relevant info (prior art, technologies, etc.)? Your patent could be invalidated later. 😳 No enforcement, no licensing. A patent attorney ensures your disclosures are bulletproof. 3️⃣ Foreign Filing License? Or Prison? 🏛️➡️🚔 If you live in India or China, filing a U.S. patent without a foreign filing license could literally land you in prison. Don’t DIY this. 4️⃣ Patent Office Fees Add Up 💸 Think skipping the attorney saves money? Not really. By the time you pay for fixes, extensions, and corrections, you’ve spent just as much—and still have a mess. Patent attorneys have battle scars from navigating these traps. The system isn’t designed to be easy—hire someone who knows the game and can help you win it. 🧠💼 Got DIY horror stories or thoughts on why AI can’t replace patent attorneys? Let’s hear them! 👇

Are patents monopolies? Emphatically, no! This is an all-too-common misconception and another myth Professor Adam Mossoff helps us debunk in the latest Mossoff Minute. Patents are property rights envisioned in the U.S. Constitution and defined by hundreds of years of statute as old as our country. Patents do confer exclusive rights to the use of something – but are no more a monopoly than any other exclusive property right, including the deed to your land, which grants exclusive rights to use, lease, and sell your physical property. Monopolies explicitly prohibit others from competing in a marketplace. On the other hand, patents promote competition via public disclosure and licensing and do not prohibit someone from competing in a marketplace any more than the title to your home prevents someone from living in your neighborhood. In this month's minute, Adam explains the origins of this misconception and lays out the overwhelming historical record of how these property rights have driven economic growth, created jobs, promoted flourishing societies, and democratized innovation!! For the non-TL;DR version, also check out Adam's most recent contribution to The Heritage Foundation that goes much deeper on this important topic: https://lnkd.in/gWaT8z_f #patents #innovation #monopoly #history #constitution #economicpolicy #invention #property #rights #jobs #growth

🚀 The #1 Patent Mistake Startups Make (and How to Avoid It!) Startups move FAST. But when it comes to patents, speed without strategy can be costly. One of the biggest mistakes I see? Publicly disclosing an invention before filing a patent. 💡 Public disclosure isn’t just pitching to investors or posting online—it can include: 🟢 Launching a product before filing a patent 🔵 Presenting at a trade show or demo day 🟢 Publishing a research paper 🔵 Even beta testing with customers Here’s the problem: In many countries, public disclosure immediately kills patent rights. In the U.S., you get a 12-month grace period, but waiting too long can still be risky. How to Avoid This Costly Mistake ✅ File a provisional patent first – It’s faster and cheaper, giving you a 12-month window to refine your idea. ✅ Use NDAs strategically – They won’t protect everything, but they help when discussing with partners. ✅ Talk to a patent attorney early – A quick consultation can save you a LOT of headaches (and money) down the road. I’ve seen too many great ideas become unpatentable because of timing mistakes. If you’re a founder, engineer, or investor—what patent questions do you have? Let’s discuss! 👇 #Startups #Patents #Innovation #Entrepreneurship #IPLaw

Okay, so earlier this week, Audacious Inquiry (Ai) filed a lawsuit against CRISP Shared Services. CRISP historically is a state HIE that over time has developed into a non-profit infrastructure company, selling productized versions of its software to other HIEs like Connie, WVHIN, and VTI. Ai (now acquired by PointClickCare) was a health IT company that provided consulting and advisory services to advance healthcare interoperability. They productized some things they built over the years, most notably their Encounter Notification Service (an ADT notification tool for alerting healthcare providers about patient care transitions). The twist here is that CRISP originally collaborated with Ai to develop this technology, then sold the IP rights to them in 2014, licensed it back for nearly a decade, and immediately after letting the license lapse in 2024, launched their own competing 'CEND' product As noted in previous articles, my perspective is that the patent process is pretty busted in the US - they are time-bound government-granted monopolies, so the bar for granting them should be extraordinarily high. Software is fundamentally written instructions that express ideas through code, much more akin to writing (copyright) than physical inventions (patents). When it comes to the law, we often mistake our intuitions for what must be, but in reality, the law isn't about our gut reactions. It's easy to look at patents and go "this doesn't feel unique": - Patent '962: "Network Architecture for Multiple Data Stream Management" - standard network programming? - Patent '194: "Network-Based Systems for Providing Readmission Notifications" - standard database queries and alerts? - Patent '475: "Parallel Network Architecture for Aggregate Data Routing" - standard data processing? It's hard to look at these and imagine how any competing solution could not have had similar features. Given Ai had ample ADT competition via PatientPing and Collective Medical, this raises an obvious question: if these patents are so broad, how did those competitors operate without infringing? Maybe they launched before the priority dates, used different technical implementations, or had quiet licensing deals. Or maybe their existence proves these patents should be invalid for obviousness. The risk to CRISP here is somewhat agnostic to our feelings - they allegedly collaborated closely with Audacious for years on IP, then chose to build a similar product and compete. That's a much harder legal position to defend, regardless of the underlying patents' validity. And the challenge for them is that one common path to challenge patent infringement complaints (the Alice Corp test that invalidates patents for 'abstract ideas') has already been successfully defended for at least some of these patents during previous USPTO challenges. CRISP now faces the legal reality of defending against these allegations, not what feels fair or logical.

In 2024, the USPTO introduced new AI inventorship guidance, establishing a "significant contribution" standard for human inventorship in AI-assisted inventions. While intended to accommodate technological advancement, this shift poses fundamental conflicts with patent law’s cornerstone requirement—complete human conception as required both by tradition and Section 100(f). This creates potential vulnerabilities, as the guidance lacks binding legal authority and, in my opinion, is legally wrong. Patent rights granted under this "half-measure" could thus face serious validity challenges down the road. https://lnkd.in/ga_BwYkR

As artificial intelligence (AI) continues to grow in various industries, securing patents for AI technologies is becoming more important. However, protecting inventions utilizing machine learning, neural networks, and other AI techniques can be challenging, and potentially implicates claim construction issues under 35 U.S.C. § 112(f), which addresses means-plus-function claim limitations and can impact how AI inventions are interpreted during the patent process and enforcement. It’s helpful for patent practitioners to understand how § 112(f) applies to AI inventions and to develop strategies for navigating these complexities.

Time for some patent myth busters! 🔍 Here are 5 common myths about patents and the real scoop on each. 🍧 📄 A provisional patent application is NOT a patent. Simply filing a provisional application in the US does not give you right to stop infringers, and will never give you that right unless you convert to a non-provisional and obtain an issued patent. ⌛ Patents are very time-sensitive, so patenting key inventions cannot wait. In the US, publicizing or offering to sell your invention can trigger a 1-year deadline to file a patent application. After that grace period expires, your disclosure may count as prior art against your own patent application. And some other countries don’t provide any grace period! 🏦 Patents can be used by the "little guy," although they are not always leveraged in the same ways that the "big guys" do. For startups, patents can act as bargaining chips and/or an insurance policy against claims of infringement by others. You may not be suing any and all infringers early, but patents can still discourage competitors or give you a leg up during negotiations. 📬 Mailing yourself a copy of your invention disclosure (or the invention itself) does not give you patent protection, at least not in the US. This misconception may come from earlier Copyright law (which also might not be the best practice even when seeking Copyright protection). Generally speaking, people seeking patent protection should consider filing a patent application as soon as possible. 💿 Software is patentable, or at least some software features may be patentable. Patenting software can be challenging, but software algorithms or other features definitely can be patentable. For tech startup founders, consider consulting a patent practitioner in order to see whether any of your innovations might be patentable. You could be leaving valuable patent material on the table by assuming that software is categorically unpatentable! What patent myths have you seen? 🤔 #StartupPatentThursdays #patent #USPTO