So I Kickstarted my idea…do I need to defend it?
January 14, 2014 11:28 AM   Subscribe

I ran a Kickstarter last month to develop a language learning app. It ended up getting a lot of media attention and doing really well. I'm a few days into setting up the business side of things, as I prepare to actually *receive* the Kickstarter funds, and I'm wondering whether I have any protections from a bigger company coming in, using my ideas and making their own competitor products.

Basically I'm developing two products: an app that trains your ears in the pronunciation of a new language in a couple of weeks, and a word list that's organized in a particular order that makes it significantly easier and faster to memorize than other word lists. Both products are based upon research that's been around for 10-20 years, so the ideas aren't really new; it's just that I seem to be the first person making products based on those studies.

Is this my cue to go spend a bunch of the Kickstarter funds on IP lawyers and patent this stuff? Most of those funds are already earmarked for the project. Still, if this is the moment I need to do something legally, then I'll have to do what I have to do..

posted by sdis to Law & Government (8 answers total) 4 users marked this as a favorite
Do nothing. Just make your product as quickly as you can and as well as you can.

First of all, it's not clear why you think these previously-published ideas are patentable, especially by you. What inventions do you think you would be patenting?

Second, let's assume you get some patents of some quality. And then BigCo comes along and infringes what you are doing. What are you going to do? Sue them? With what money?

Third, if BigCo is seriously a BigCo, the same dumb laws that might enable you to get these patents will mean that BigCo has a horde of patents that you are infringing. Most of them will be idiotic, but the patent system is profoundly idiotic. So you'll shake your spear and they'll shake their nuclear-tipped ICBMs.

The technology world operates essentially in a delicate balance of mutually-assured destruction as regards patents. This is (sadly) changing, and that's why you can see the giants spending billions on dead companies: patent portfolios. Apple, Samsung, Google, and Microsoft are locked in a globe-spanning patent war that is a complete and utter waste of resources. Thousands and thousands of people working around the clock, millions upon millions of dollars trying to figure out if there Microsoft's "tapping a button to play a sound" patent will hold (this is a fake example), a completely trivial non-invention, obvious to anyone skilled in the art, and almost definitely being an incarnation of prior art.

If you absolutely must do something, hire a lawyer to write you a very broad provisional patent and file it. This will give you the priority date while you make more money and narrow in on an actual grantable defensible patent, at least in the USA. I think in most of the rest of the world, once your invention is published, you give up the right to patent it.
posted by jeb at 11:38 AM on January 14, 2014 [3 favorites]

IANAL, and this is not legal advice, but beware (in general, but in patent law specifically) anything you find on the web. You have the right idea that the only thing you can realistically hope for is to protect your product from big companies and patent trolls that could crush it by demanding ridiculous license fees, tying you up in legal action or both.

The U.S. switched to a "first-to-file" system last year. Previously if you could prove (with an expensive lawyer's help) that you invented something first, it didn't matter if someone else patented it first. Now the rules are completely different.

Oddly, the fact that you're basing this product on published research doesn't necessarily mean that you're in the clear. Despite the legal requirement that inventions be "novel" and "non-obvious", in practice the level of additional innovation required to get a patent is vanishingly small. In my own case, in college I worked on a research project to develop electronic book software with both text-to-speech and speech controls. There were previous inventions covering each of those separately, and the "invention" was to combine them in a single piece of software. With the help of patent attorneys from a big company, that patent was granted on appeal. Really.

In fact, as I understand it, you're probably better off revealing what you've developed to prevent others from patenting it and coming after you. The whole situation is terrible: patents only have defensive use for all but the very largest few companies, actual inventors almost never get paid, and trolls who hold the rights to the most trivial "inventions" can bring legitimate businesses to their knees in legalized extortion. Good luck.
posted by wnissen at 12:01 PM on January 14, 2014

While patents are expensive and possibly pointless (unless you're chasing VCs, which I assume you're not because you kickstarted instead), at least spending some time talking about your concerns to an IP lawyer would be a cheap way to have some options and advice and common best-practices laid out for you. Similarly, look for some kind of start-up/entrepreneur meetup or incubator program where you can find people who have made comparable products, so you can talk to them about their experience with second-to-market competition.

I have a little experience with being copied (by individuals, not companies), but my not-entirely-relevant-here take-home lesson was
1) A fair amount of the time you don't need to worry - ideas are cheap and execution matters (and is not cheap). People so weak with ideas that they copy are often also weak at execution.
2) Those that are good at execution are good at it in part because they can sink resources into it. They're unlikely to commit resources to copying an unproven product and unproven market, so you have a head-start to get established and hopefully... entrenched!
3) It's all about the money. If you're making a lot of it, everyone will want a slice of the pie. If you're not making any, well, then it doesn't matter. As a private entity, you don't need to publish earnings, so you might get slightly more of a head-start in that it's not easy to know if you're making a lot of money.

Also, while I'm suspicious that patents are of much utility to the little guy (but lack personal experience on the subject), maybe the idea of having a patent in your name has some additional value simply as a personal bucket-list item, an achievement-unlocked thing? If so, maybe you can justify the cost, or sink some private funds into it, and be happy about doing it regardless of whether it turns out to be useful?
posted by anonymisc at 12:56 PM on January 14, 2014 [1 favorite]

Do nothing. Just make your product as quickly as you can and as well as you can

This x1000000.
posted by rr at 1:07 PM on January 14, 2014 [1 favorite]

Don't worry about it. The counterargument for BigCo having a world of resources to throw at copying you is that they are also slow to decide and inefficient in actually executing on a bare idea. A big ship steers slowly, and all that. You're doing fine, bub.
posted by rhizome at 1:35 PM on January 14, 2014 [1 favorite]

This should not be any where near the top of your list of concerns right now.

Most likely, they will ignore you until they notice that they are loosing business to you -- not something they are going to notice any time soon. Moreover, when they notice you, they'll be more likely to attack your approach than try to adopt it, because they already have their own way of doing things that they are invested in. If there were open to doing things differently, then they have ample resources to do things without copying you, and/or by navigating any patents you might file, perhaps even making a counterclaim against you.

If it is the matter of a new entrant to this space that have more resources than you, many of the above points still apply. They may be more open to different approaches, including yours, in which case they will make a "build vs buy" decision. If and one that happens, they'll probably investigate whether it would be worthwhile to acquire your company because it gets them up to speed faster, and mitigates a lot of risk, both things they might pay a healthy premium for.

Either way, the best defense is to succeed, because success brings more resources, either to fight-back against established players, or to scare off and/or strengthen your negotiating position with new entrants.

Good luck!
posted by Good Brain at 2:52 PM on January 14, 2014

Do nothing. Just make your product as quickly as you can and as well as you can.


People just entrusted you with their money -- they are now your first priority. I've seen too many bad Kickstarters to know how tempting it may be to be sidetracked, then watch as angry backers ruin reputations by rightfully calling out KS creators for not fulfilling their promises in a timely manner.

Fulfill your promised rewards. Period. End of story. If you have the capacity to focus on anything else, then do whatever you feel you need to do, but priority one is honoring your end of the contract pronto.
posted by Unsomnambulist at 10:02 PM on January 14, 2014

I also agree that you just need to execute the products and your marketing well (which youve already shown you can do with your Kickstarter campaign) and the business be fine, especially since you have first mover advantage. In your spare time for extra cash, write a book for the rest of us about how to raise funds successfully on Kickstarter.
posted by Dansaman at 12:44 AM on January 15, 2014

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