Should We Register Our Algorithm As a Patent?

Question

We’re developing software. Should we patent our algorithm?

Short Answer

No. Focus on marketing (finding customers), sales (making money) and improving your product (for more customers and more money).

Long Answer

Ahh. A classical question which comes up time and time again! Endless startups have sunk endless amounts of money into this, and the patent industry quite adjacent to the medical device compliance industry when it comes to random consultants being eager to take your money.

So you’ve built some software and are thinking “hm, someone told me you can register patents. Apple has lots of patents. Shouldn’t we patent our fancy software algorithm?”.

The answer is no. In 99% of situations it doesn’t make sense for a startup. And no, you’re unlikely the 1%.

Generally speaking, if you register any sort of software patent, the question really is what you want to achieve with that. If it’s just about putting a sign behind the name of your algorithm, register it as a trademark instead? That’s not expensive, you can do it online at the German patent office (DPMA, I think), and it’s done in a few weeks (which can be considered lightning speed in Germany).

OpenRegulatory and Formwork both are registered trademarks, so I could theoretically put the copyright (c) sign behind those names. But then again, I don’t, because I feel like.. I don’t know, only crappy software providers do that (does Apple advertise their iPhone as “this is the Apple (c) iPhone (c)” – no).

If you do want to go down the patent route, consider:

  • It takes long (years?) to get one registered. It’s expensive – you might need patent attorneys etc.
  • Registering a patent means you have to actually create public documentation of how it works – not in endless detail, but possibly good enough that your competitors understand what it’s about and enough to enable them to build something similar. Many old-school hardware companies opt to not file patents because that would expose too much internal information.

I guess the biggest point is that you have to ask yourself what you’ll do once your patent is registered. In 99% cases of startups, it doesn’t help with anything you need to do:

  • It won’t help you with marketing – you won’t reach more customers because of your patent. And no, crappy press releases that company X has registered a patent, no one reads those.
  • It won’t drive more sales – customers don’t purchase more iPhones because it has a lot of patents behind it. They purchase it because it’s a good product.
  • It won’t make your product any better.

All in all, it just takes (huge) chunks of time away from other activities which you should be doing instead.

Instead, focus on marketing, sales and improving your product (probably in that order).

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