Some time ago, Mail.Ru Group decided to enter the international market. To protect ourselves and our achievements, we decided to launch the patenting process. Monitoring the Internet environment in Russia has shown that we have this topic in a state close to embryo, and will have to reinvent the wheel.

Not without a pair of false starts, but we invented the bicycle, and he went: we submitted the first applications for patenting the inventions of our employees in the USA. Pavel Pogodin, who was previously engaged in patenting at Sun Microsystems and Oracle, is actively helping us in this. Not long ago, Pavel came to our office and talked about which technologies are patentable, how best to approach issues of patenting, how to make out a description of inventions and what needs to be done to get a patent passed.
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On Habré often appear descriptions of fun and useful inventions, and we decided to share with you what we learned about patents. We hope this information will be useful or at least interesting for you.

Why do we need patents?

Suppose that a certain inventor, Vasya Pupkin, invented a robot shoe lanyard and began to keep his invention a secret, fearing that the agents of imperialism would find out about him and make a lot of money on his production. At the same time, they will receive global honor and respect, and no one will ever know about Vasya. And then all of humanity will lose the chance to get rid of the morning torment of tying shoelaces. Imagine that if there are many such fearful Vasya, the world will lose a lot of useful discoveries and the development of mankind as a whole will slow down.

Patents were invented so that the inventor would not be afraid to tell people about his work. A patent prohibits copying, distributing, selling an invention without his, Vasin, permission. If the invention turns out to be useful and it is launched into mass production, Vasya will be able to receive his share of income, honor and respect simply because he is so smart and contributes to progress. And then progress? Well, of course, for the most part, all inventions, and even artificial intelligence for lacing shoes, move humanity towards a bright future. After all, while the robot is tying your shoelaces, you can do something really important - come up with a new alternative energy source or everyday use of the theory of relativity.

Patents are part of the intellectual property that protects the fruits of our mental endeavors. Naturally, not all fruits are fruit, but only useful and new ones. A patent gives the right to protection of an invention for, as a rule, 20 years. Then the invention becomes public domain, and anyone can use it.

What can and cannot be patented? Is it possible to patent electricity or uranium (if you discovered them)?

If scientist William Gilbert had the opportunity to patent electricity, on which all modern civilization keeps, he would have become a billionaire (Gilbert first described this phenomenon in 1600 and coined the term electricity). Unfortunately for Gilbert, one cannot patent the discovery - that is, something that has always existed, regardless of the discoverer.

Patents are not granted on laws of nature and phenomena. But you can patent the device using natural phenomena or related. The patent agency would not have issued a patent to Gilbert, but another inventor, Volta, could patent the prototype of a modern battery. In 1800, he invented the first source of direct current, a galvanic cell.

Also do not patent open substances found in nature. For example, rare earth metals, despite their all value for the development of modern technologies. The same can be said about abstract ideas. These include mathematical formulas, for example, the well-known Bayesian theorem (or formula). It is impossible to patent the idea of ​​a time machine or a perpetual motion machine - if the inventor cannot clearly explain how to do it, then he will not receive a patent.

But the Russian inventor, Alexander Semenov, recently invented a tank , firing at the enemy with tank tank excrement. Despite the fact that the invention is not useful to a perpetuum mobile in terms of utility and patented, the machine was patented, because Semenov described in detail and schematically depicted the work of the tank. Despite its absurdity, the idea is quite realizable and even, perhaps, useful to someone.

What can be patented? And what exactly can a software developer patent?

A patent can be obtained for mechanisms, systems, products and processes. The last three points — systems, products, and processes — can also be included in software. Software is patented in several ways:
● Like process . Let's say the same indefatigable Vasya Pupkin created software with a completely new search logic. The search program must be described as an algorithmic process.
● As a device . When Vasya installed his program, the computer changed its functions. Previously, he was looking for it, but now he knows how differently. By law, this is a different device, because it does something different from the old one. Now Vasya can patent a new device.
● As a product . The product is an information carrier with your product. If Vasya writes his program on a USB flash drive, it will be considered a product, and, accordingly, can be patented. If it writes to disk, it will be another product, you can get another patent for it.

What conditions must the software meet in order to be patentable?

In order for your invention to be patentable, it must be new and not obvious. The novelty of the concept is easily verifiable - in the world there should not be patents similar to yours. You can find this out by studying patents and articles in technical journals that are freely available on the Internet, or by hiring a patent attorney who will look at similar patents from state databases.

Non-obviousness is a more complicated concept and, excuse the pun, non-obvious. The obviousness is that this new product will not be able to create someone who has almost no knowledge in this technical field. What is it, simply put, can not do anyone.
Can I take a computer keyboard, draw a Flash Gordon comic on it and patent it? No, such an "invention" will not be obvious. Indeed, anyone can do this, even a three-year-old child (only, perhaps, with less skill).

Is it possible to get a patent, improving existing software or product? For example, to provide a cell phone with an airbag that triggers when dropped?

Yes, of course, you can. Most of the inventions are fragmentary: an existing solution is taken, new aspects are added to it, improvements - and this is already a new product. Approximately 9 out of 10 patents are not revolutionary (containing 100% novelty), but evolutionary: let's say, to 90% of the previously existing 10% of updates are added, improving technology and processes.

A well-known example is Ronald Huds, who combined a telephone system and a database (this is when you call the bank and automatically perform some operations with your bank card). All modules of this system were known: there was a telephone system, computers, servers, databases. Huds earned $ 2 billion from his patents, as mobile operators and telephone networks paid him for using his invention.

Is it possible to patent something that does not exist - just to describe the product on paper?

Yes. The law does not require the inventor to necessarily provide a prototype system or machine, but the descriptions should be sufficient to implement it. Gordon Gould, one of the physicists who were involved in the development of lasers, managed to obtain several patents several years before the first laser was created. He came up with a number of improvements (mirrors, their system of regulation, and more). As a result, he earned about $ 30 million on his patents.

How to apply for a patent?

The first step is to apply. A patent application must be filed with the US or European Patent Office before an invention is disclosed publicly or begins to be used commercially. It is better not to give your development to wide publicity - not to disclose important details in the media or in your blog, do not run for users to test. In some cases, you can sign a non-disclosure agreement and demonstrate your invention under this agreement.

However, it is still more reasonable to first file a patent application; after that, you can safely release the invention to the world, without waiting for the issuance of the patent - the main thing is that at the time of filing the application it was new. After submitting an application, you can participate in exhibitions and conferences, talking about your idea. This, in particular, will help to understand how new software will be useful and whether you can earn money on it.

How to file a patent application and describe your invention?

1. Tell us what problem your development solves.
Start with the problems - describe the technology that you have taken to improve. State what it was before your invention, what problems you had to face and how your system prevents them.

2. Think like a marketer
Analyze what your development is better than the previous ones, and try to protect the main aspects that you advertise to potential customers, that is, those who may be interested in your product. For example, you say that your search engine or mail is better, because they have a more user-friendly interface. Try as accurately as possible to state the merits of your interface, distancing you from competitors.

3. Think one step further.
Think about the alternatives to your solution and try to include them in your description: if you describe only one solution, your patent will be limited. Try to describe all possible implementations that will solve the existing problem - of course, within reasonable limits (for example, you can consider two or three solutions, and rest on general phrases).

4. Description should be sufficient
One of the most important conditions for describing your invention is the requirement of sufficiency of description. It can be stated as follows: an ordinary engineer, using your description, should be able to interpret and use the invention without any super efforts. Who is this conditional "ordinary engineer" applicable to IT? In the USA, this is a person with education in this field and two years of experience. When writing a description, you must keep this in mind.

5. Better to show once
The patent laws of most countries, including the United States, require that all aspects of your invention be illustrated. Usually you need at least four pictures.

● Logic diagram. Most modern technologies are distributed: there is a server, client, database. Draw the whole system. No need to go deep into the wilds, it is enough to abstractly display all the components of the system: the client, application server, database, storage, etc. Each element needs to be described - say, about the database to write what it is and what information is stored there.
● Data flow diagram. Here, too, everything is quite simple: it is important to display how data is circulating inside the system: "The client sends a request to the server, the server saves the data in the database, transmits other data, the client receives a response."
● High-level flow chart. You should not paint the branching of all possible variants of interaction scenarios. A regular linear scheme will suffice.
● If your system includes a user interface, display it in the image.

80% of inventions in the IT field can be quite clearly described on the basis of this template. Four such illustrations will be enough for an ordinary engineer to realize your invention. Of course, if there is another implementation of the invention, it is necessary to add four more pictures describing another embodiment of the idea.

The second stage is the examination. After your application is received, the patent office begins an examination, within the framework of which existing patents and publications are searched based on the described claims. Very often, inventors, including software developers, are rejected because similar designs have been found. In American practice, the proportion of such cases is 95%.

What to do if a failure comes?

You should not be afraid and give up. In essence, this is part of the process. After the refusal is received, the inventor analyzes the publications and patents found by the department and identifies differences in the invention and technology levels. When differences are identified, you can go two ways. The first way is to explain to the expert how his conclusion was erroneous, pointing out the differences. The second way is to change the claims, note that the invention includes an additional element that is not disclosed in the description. These two methods are applied equally often, and if the strategy was chosen correctly, in most cases the patent will be approved.

On average, in the process of obtaining a patent, a developer may receive two or three requests from the patent office, requiring a particular adjustment of the application. From the moment of filing the application, it will take from six months to three years.

Patent received. What's next - what rights does he give and how can he protect his developments with his help?

If Vasya has a patent portfolio, he can earn money by selling his patent for SeekThis search engine or receive income from mass production of the robot-shader, and also sue if someone uses these developments without Vasin’s consent. It should be remembered that the only way to protect an invention that is given by a patent is the right to sue.

It is also worth remembering that competitors can do the same. If you have a patent technology, this does not at all mean that you can use it, because there may be another patent for some aspect of this technology that can be used against you. They like to pursue patent trolls — companies that produce nothing but file massive patent claims. Especially they are attracted to large companies.

If you believe that the rights that enshrines the patent granted to you are violated, first of all you need to make sure that they are really violated. This is a technical operation that is carried out by comparing the claims in your patent with a product that encroaches on your monopoly. The analysis will help the table, which fit all the elements of the claims. Then tick marks are placed opposite those that are present in the "suspect" product. If the tick covers the entire invention, congratulations, you have identified a potential violator.

The next stage - you contact the violator: send a letter notifying that the product violates your patent (the letter must include your patent number). Usually, the answers come back that "not at all, we do not violate any patents." After a few rounds of similar correspondence and exchange of courtesies, you have three ways: either to agree, or leave without receiving anything, or simply to sue. Which way to choose from this situation is up to you.

We hope that our patents will remain in daddies and protect what was created in the walls of our company. However, it is always nice to know that the fruits of your intellectual property are protected, and, in which case, you have proof of that.

Alas, it is now very fashionable to use patents not so much to protect their inventions and ideas as to fight with competitors . Patenting every little thing put on stream only in order to bring multimillion-dollar lawsuits . Some "patent wars" last for years, the parties exchange numerous "blows", making against each other more and more new claims for all kinds of real and imaginary patent infringements, which are registered by almost hundreds. This popular type of activity has an ironic name - “patent trolling”.

In order to protect our company from such actions by competitors, we have decided to protect our products and services with patents. The benefit has already accumulated them decently, and in each of them a lot of efforts of our specialists, their knowledge, experience and insights, not to mention the financial side of the issue, have been invested. We are by no means going to use patents to fight competitors. But we need to be prepared for such unfriendly actions from outside. "We are peaceful people, but our armored train is on the siding."

If you have something to say about software patenting, let's share experiences and ideas in the comments.