The evil engineer's guide to patents

tl;dr: It's super-easy to file software patents and boost your resume.

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You see this in the bio of a speaker at a software conference: "PhD from Stanford, built three successful startups, owns four patents." Envious? I can't help you with the first two, but the last one's easy. Here's how you too can boost your resume by dragging down human progress.

As for me, I'm the inventor of 13 patent applications. So if I'm about to say anything unpleasant about pumping up your CV with patents, at least it's not sour grapes. Pretty good, considering, from a man named Fox.

In 1999, I invented COMET, the Web protocol for pushing data to a browser. COMET is widely used and is now being made part of Web standards. Yes, I invented COMET: Look here, a real patent filing from 2000. Any experienced software engineer will tell you that this software design has been used for decades. No, I didn’t invent COMET. But because I invented COMET -- I rock! I'm a rockstar ninja! Hire me for a big bundle of money! 

If you are moderately smart (and if you’re not, stop reading this), you too can be in on the scam. The average time needed per patent is roughly 15 work-hours.

You can then brag, truthfully, that you, by law, own the patents. Your employer has all rights to them, but as you'll soon see, that doesn't matter much.


You do not need a new idea, just an good enough idea for convincing your bosses to file it. (If you're going it alone, you don't even need that.) Brainstorm a little, think of a cool idea, then search the web and Google patents for half an hour. If you don’t find your idea mentioned exactly, you can probably patent it. All well-known ideas in software have dozens of patents on them, so it's not a problem if the idea already exists.

Still think a patent needs to be a new idea? There is an official, approved, signed-and-sealed patent for trimming whitespace when inserting into a database -- that means, converting " John Brown "  to "John Brown". It's from 2009, and engineers have been doing this rather dull little piece of database code for 50 years.

No, wait, stay tuned for more! There’s another patent pending from the same inventors, this one for trimming whitespace when selecting from a database. Two patents on the resume instead of one. Come on now, you’re smart enough to come up with ideas like that, aren’t you now?

You don't have to write up the patent. All you need is to describe it to a patent attorney, orally or briefly in writing. The attorney will multiply the verbiage by about 40, writing in jargon which is optimized not only to broaden the patent, but also to confuse the underpaid patent examiners so that they approve your patent.

I won't go into detail on how the patent system really works. This is a guide to "inventing" for working grunts like you and me. Please read up on the quagmire that is the intellectual monopoly system. But the first thing to know is that software patents are not used to protect a company's innovations, nor to sell license to use the invention. Instead, they are used to threaten other companies with Mutually Assured Destruction. As in “Wanna mess with me? We have 50,000 patents in our files, and I bet that if we check hard enough, you're violating one. Back off, sucka!” Patents are also used to shake down companies for protection money--particularly those who appear to have enough money to extort but not so much that they can defend themselves.

I once asked an experienced inventor how I could make money off a patent, if I actually controlled one myself. Clearly no one is going to pay me royalties for the privilege of using my yellow web-widget. This is his answer: First,

talk up your yellow web-widgets in conferences and articles. Meet with companies and try to convince them that yellow web-widgets are the coolest thing since liquid helium. Don’t mention that you have a patent. Then, when they develop a yellow web-widget, sue 'em ‘til they bleed.

If you're doing patents on your own, here's how to do it cheap. File a provisional patent in the US (the only country that counts) for $110, with a brief description in ordinary language. I

t lasts for a year, and you can file up to a year after you release your “invention” in a software product. So, you have two years to find funding for the real patent, or just to drop the provisional one once your company is either stable and successful or stably dead.

Try not to implement your patent idea. All you need for filing is a vague description and if you decide to patent a feature which is in your product, you'll just be under pressure to file by the deadline.

You don’t care much if the patent office accepts your patent. What's important to you as employee inventor or seed-stage founder is that it gets filed. You can honestly list "patent applications” on your CV. When you do, you might get a little bonus, or if you are a founder, you can brag about the patent pending to investors. After that, it takes five to eight years for the patent to get finally approved. Where will your career/startup be by then? 

Most patents applications are in in the end approved, though usually after rejection and further wrangling. (At that stage, sometimes applications are sliced into multiple applications. Yay, another patent for you! I, for example, own two patents with the same name.) 

In the very rare cases that applications fail to turn into patents, it is usually for silly reasons like the bankruptcy of the company you worked at. No sense worrying about that when writing the patent. In any case, though approved patents get listed as such on Google Patents and other websites, failed applications do not, so you will never have any reason to remove them from your resume.

A pop quiz question: Is it better to patent a deep, insightful, revolutionary new algorithm, or a trivial new GUI widget? If you guessed “cheap GUI tricks,” you're well on your way to filing your first invention. The more obvious a patent is to a layperson, the less likely it is your pointy-haired bosses or corporate patent committee will write it off as weird boffin stuff. And it's easier to threaten to sue other companies for what can be seen in the GUI, rather than for deep-down algorithms that no one can see, nor understand if they could.

To get your bosses to approve your idea for filing, get your product manager to say that the idea is in the product roadmap. (A product manager will put anything in the roadmap so long as it’s far enough in the future that it never has to actually happen.) Then, you can say that the patent will protect features officially specified for a future release of the product.

If you're asking, "But what about innovativeness, non-obviousness, business value?" then, good: You've read up on what counts in a patent. You need that knowledge to word your patent right, so that your boss or patent committee agrees to file it. Thinking like a lawyer -- i.e., not worrying about the facts so much as getting an approval, within the limits of truth and ethics -- is the most important thing to keep in mind when you word your patent.

Here's a way to become your colleagues' favorite office buddy: List your cow-orkers as co-inventors. They do the same for you, and everyone gets more patents on their resume. If you manage a team, you can do even better: Get yourself listed as an inventor -- your underlings won't argue -- then make them do the scut work of pushing it through the filing process.

Here's how you add people as inventors: Have a brainstorm meeting to refine the idea. Any  participant with half a brain (sorry, managers, you can only pull off this trick if you have at least half your brain left), will likely contribute something significant to the discussion. When they do, you not only may, you must list the contributors as co-inventors.

Don’t worry if the colleagues didn't help you slave over steaming Bunsen burners, while the Tesla coils hiss and sparkle in the background. Not required by law.
Now, we'll take a break while you bang out a patent.

. . . Go ahead, it's kind of fun to get official government approval that you are a true innovator . . .

OK, now you've carried out my instructions, and your patents are filed.

The next step is to list the applications on your CV or personal website; then, write a blog post denouncing software patents.

Next, if you’re looking to salve your wounded conscience, try the same rationalization used by nuclear weapons engineers: Without the threat of Mutually Assured Destruction, where would we be now?

Or maybe the world has enough sense to get rid of this negative-sum game?  It might take a while. While you’re waiting, read Against Intellectual Monopoly, by  Michele Boldrin and David K. Levine, Cambridge University Press, 2008. You can  download it here. Or just read this article at The Atlantic.

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Disclaimers
1. This blog is most definitely my personal opinion and does not reflect the opinion of any current or former employer.
2. I Am Not A Lawyer. The article may include mistakes about the patent process. I also made some generalizations for the sake of brevity. Figure it out for yourself.
3. The above is written from the frog's-eye perspective of an software engineer in the trenches. There is also the bird's-eye perspective of a large-company executive, which is quite different, though just as grotty.