Open Source Software: Hamstringing Patent Rights

In the rush to develop their software many Entrepreneurs often choose to incorporate open source software into their mobile applications, websites, other proprietary software, the underlying algorithms, etc.  Yet, these modules of open source software can carry a very real threat in the form of the so-called “copyleft,” or open source, agreements associated with them. 

Copyleft agreements come in a large variety, some of which are rather harmless.  For instance, some of these agreements merely allow a party to re-use the associated software with few restrictions.  But some copyleft agreements dictate that the (re) user of the associated software allow others to use the programs into which they incorporate the open source software without restrictions and/or for free. 

Typically, these agreements also stipulate that by merely re-using the open source software, the re-user agrees to the terms of its copyleft agreement.  This means that by re-using such software, effectively, the re-user has granted a royalty free license for others to use their otherwise proprietary software.  This situation can effectively hamstring any patent rights the re-user/entrepreneur has in that software.  

Clearly, before using open source software, Entrepreneurs should have the associated copyleft agreement(s) reviewed by an Attorney.  In the alternative, Entrepreneurs should weigh carefully the associated risks or develop their software independently. 

We at the Villhard Patent Group would enjoy discussing your potentially patentable ideas with us.  For more information about us, please see www.villhardpatents.com or call us at 512-897-0399.  We look forward to hearing from you.

Pitfalls In Mid-Range Provisional Patent Applications

“Mid-range” provisional applications often conceal serious pitfalls.  Yet, many firms draft these documents for a temptingly small amount.  A provisional application is a client-prepared document that most Attorneys will file for $1000 (plus government fees).  On the other hand, prices for an Attorney to draft a non-provisional application lie along a broad spectrum typically between $8000 and $15,000 

Mid-range provisional applications supposedly bridge the gap between the two other types of application.  Typically, firms will ask between $3000 and $5000 to “prepare” a mid-range provisional application.  But that preparation, in this blogger’s experience, is typically handed off to a very junior Associate.  They might spend only a few hours on it thereby producing a few pages of text.  Moreover, it is unlikely that, on such a meager budget, that a senior Attorney will have any billable time to spend reviewing it.  Thus, from a legal “quality” perspective, these documents tend to be poorly written.

Moreover, only rarely are any claims drafted as part of the mid-range provisional application.  Claims, of course, are the heart and soul of a well-crafted application.  Without claims to guide the drafting, the mid-range documents tend to stray from what the point ought to have been.  Moreover, it is possible for the drafter to completely miss the point of novelty.  Further still, if they do manage to address the point of novelty, they might give it only a cursory treatment.  

Converting these excuses for patent applications without an extensive re-write only compounds these problems.  For during arguments with the Patent Office (during the prosecution phase of the resulting non-provisional), your Attorney often finds his hands tied by the original poorly drafted document.  And many of these problems cannot be fixed after the conversion.  Bottom line: you get what you pay for.  Buyer beware.

We at the Villhard Patent Group would enjoy discussing your potentially patentable ideas with you.  Please see www.villhardpatents.com for more information about us or call us at 512-897-0399.