New product

[Corporate666]

Idea's are like a$$holes, everybody's got one.

It's all about execution. Get a competent design / manufacturing partner and expect to get only 10% (or less).
Or wait a couple of years while you learn the skills yourself.

Or just throw it out there (open source) and see what comes of it and forget about patents...

[2c]

Not gonna happen.

No company is paying a 10% royalty for anything (in general), especially something that isn't patented.

That's asking a huge premium over what patented devices usually license for, but for something that has no protection at all.  Like telling someone "hey you should start a coffee shop!" and then expecting 10% of their profits for having the idea.  Not gonna happen.

[Corporate666]

In addition you missed the other way patents fail, even in the USA: big manufacturers simply carry on regardless or offer derisory terms to an individual holding a patent. See Armstrong and his FM patent.

Sure, that can happen but it's not the standard way of doing things.  Again, people often put a lot of faith in the validity of the patent, but  most patent infringement suits are won by the defendant (often by invalidation of the patent or some of its claims).  So if an individual has a patent and goes to a big company and says they are infringing, the big company has a lot at risk.  They aren't generally going to just say "ok, you win - we'll stop".  But it's a mistake, IMO, to think that companies would rather litigate than pay royalties if they feel the patent is solid.  Royalties are usually in the 1-5% range, and the risk of willful infringement is treble damages and potential loss of all revenue.

Armstrong is an interesting case.  They didn't just tell him to piss off and infringe his patent anyway - they came up with an alternate technology that they claimed did not infringe.  Whether they were actually infringing never was settled as a matter of law, IIRC, because he died before it was decided in court, and his wife settled with RCA.  But your point is an important one - a patent fight is like any other legal fight, the deeper the pockets of your opponent, the more difficult it's going to be (but the payoffs are larger too).  Didn't Samsung get something approaching a billion dollar judgement against them to Apple?  Big companies, big stakes, big risks, big rewards.

[Corporate666]

This is incorrect and a very dangerous approach.  Your provisional application must be at least as "fleshed out" as your actual patent application.  If you do not specifically disclose even a tiny detail, you cannot claim the provisional filing date in the normal application.  You absolutely cannot get a provisional on the idea and then flesh it out after the fact.

Many innovations will have multiple components and may result in several patent claims.   What sometimes happens is part of the invention become "settled" while other parts of the invention still needs to be "fleshed out" in additional design work.

In this case, it may be beneficial to file a provisional application for the "settled" part, then continue to flush out the rest of the design.  Further provisional applications may be made for other parts of the invention as they become "settled", or if changes are made to previously "settled" parts.   When the invention is finally finished (assuming within a 12 month period), a non-provisional patent can be filed referencing all the earlier applications.

This approach gives you the benefit of getting an earlier priority date for parts of the invention.  The alternative is to defer filing until all aspects of the innovation has been finalized (but lose the earlier priority date), or to file several non-provisional applications along the way (expensive).

Maybe it works differently in other countries, but in the USA a patent has a priority date for that patent.  If one were to file multiple provisional applications and then reference them in a single patent application, they would only be able to claim priority to the date of the last provisional application, not seperate priority dates for each claim (or each set of claims) referencing a previously filed PPA.

Of course, they could file (for example) 10 PPA's and 10 RPA's referencing those PPA's, but that would be extremely expensive, and there is a danger that previous claims and patents would be disqualifying prior art for later applications.  Usually, that prior art would be a good thing since it would mean that part of the invention was already covered, but it would be a detriment in terms of lengthening the patent coverage date.  It may be worth it depending on the IP in question, but IMO it wouldn't meet your previous post's objective of getting protection at a low cost. 

[Corporate666]

My understanding of knock off is direct copying or manufacturing of unlicensed product, such as fake iPods or over produced headphones by OEM.

One can export whatever things he wants, as long as it is legal to his local custom's requirements. But it is the liability of importer and importer's country's customs to stop IP infringing goods from being imported.

Chinese government is protecting local established business a lot, and I hate this local protection. But our government is ran by people born in the 50s or 60s where their education was to fuck the western world.

I don't think knock-off has a defined meaning.  In colloquial US business conversation, it's used to refer to a copy of a product that's meant to confuse the consumer into thinking it's the original.  But it's equally used to refer to a product that is not meant to confuse the consumer as to the brand, but rather copies the features/functions of something.  Even if that "something" isn't protected in any way.

Sure, it's legal for a Chinese company to export goods to a place where those goods violate IP law, but most of the platforms that enable the transactions (eBay, Amazon, Alibaba) have mechanisms in place to report counterfeit goods.  It's not realistic that customs or border protection could intercept such goods, so it is really something national governments need to get on board with.

The irony is that China has been under huge pressure to beef up their IP laws and enforcement - and they have.  But not the way that helps anyone but themselves.  They are allowing Chinese companies to claim IP that is already owned by others outside of China - but China does not let the actual inventors/developers claim the IP in China.  Then they enforce that IP by blocking non-Chinese made goods from getting in.

It will be an interesting conundrum in the years to come.  China is moving up-market and a lot of these market controls are incompatible with an open global marketplace, which China will join at some point.  But looking at (for example) websites, if they open up their markets - RenRen, Weibo and such are going to suffer, so they've created a disincentive for them to open the markets.

Dangerous situation, long term.

[ade]

I am talking about whether it's legal to make those good and sell into a foreign market.  There is no ambiguity, it is not legal.

Nope, this is perfectly legal in China, unlike in most other countries.

Again, people often put a lot of faith in the validity of the patent, but  most patent infringement suits are won by the defendant

Nope, most infringement suits are won by the plaintiffs.  (In the US anyway).  In fact 75% of patent trials that get to the jury are won by the plaintiffs. Latest data (see Figures 9 and 10): https://www.pwc.com/us/en/forensic-services/publications/assets/2015-pwc-patent-litigation-study.pdf

And that's not counting settlements won by plaintiffs before getting to trial, which I would think is the more common case.

Maybe it works differently in other countries, but in the USA a patent has a priority date for that patent.  If one were to file multiple provisional applications and then reference them in a single patent application, they would only be able to claim priority to the date of the last provisional application, not seperate priority dates for each claim (or each set of claims) referencing a previously filed PPA.

Nope again.    The US and most jurisdictions allow multiple priority dates for different claims.

If Alice filed a provisional application with Claim 1 in January, another with Claim 2 in June, then a non-provisional application referencing both in October, then during examination each of Alice's claim will be assessed against their respective priority dates (January and June). 

Suppose now Bob had filed an application with Claims 1 and 2 in March, Alice's Claim 1 would survive but her Claim 2 would be rejected.

See for example US patent 6,606,430 claiming several priority dates, from October 17, 2000 to July 17, 2001.  Quoted below:

The present application claims priority under 35 USC 119 (e) of provisional application serial No. 60/241,117 filed Oct. 17, 2000 the disclosure of which is incorporated herein by reference. The present application further claims priority under 35 USC 119 (e) of provisional applications serial Nos. 60/230,130, 60/230,131, 60/230,132, 60/230,133, 60/230,134, 60/230,571 and 60/230,572 all filed Sep. 5, 2000 the disclosures of which are incorporated herein by reference. The present application further claims the benefit under 35 USC 120 of the prior filed nonprovisional application Ser. No. 09/836,500 filed Apr. 17, 2001 and Ser. Nos. 09/907,056, 09/907,057, 09/907,137, and 09/907,232, filed Jul. 17, 2001, the disclosures of which are incorporated herein by reference.

[tggzzz]

Maybe it works differently in other countries,

It does work differently.

[RalfSchooneveld]

Gentlemen, I once again thank you for all your input. It means allot to me.

I have a question concerning 'Open source'. I have done some quick research about it and I am liking the idea so far. I even found a funny Lego video to explain it all.


Does any of you have any experience with open source? This is relatively new for me, I only found out about open source because of this thread. I am also curious as to what you all think about how they explain it in this video.

[Howardlong]

Gentlemen, I once again thank you for all your input. It means allot to me.

I have a question concerning 'Open source'. I have done some quick research about it and I am liking the idea so far. I even found a funny Lego video to explain it all.


Does any of you have any experience with open source? This is relatively new for me, I only found out about open source because of this thread. I am also curious as to what you all think about how they explain it in this video.

You will get a lot of responses I am sure, but there is a glaring omission from that video. How are you going to monetise your efforts? It just says the house costs money to build, but it conveniently doesn't say how that open source architect pays the bills.

My personal preference nowadays having given away designs over the years, is to avoid making my new designs open source other than to provide software and hardware interface specifications and examples. The reason originally was quite simple, and that is that my newer designs frequently use parts which required NDAs, but there are other reasons too. I find that nowadays in particular if you're not careful you end up with an army of armchair quarterbacks all with different opinions driving your product's direction. You have enough on your plate without unnecessary scope creep.

One example I cite was providing OSX and Linux compatibility for one product from the outset as well as Windows. This was in response to a very few quite vociferous individuals who predicted little short of armageddon if I failed to support all these operating systems from day one. The truth is that the scope creep added a significant additional delay to release of the product when I could have been making money to reinvest in new stock to fullfill an already very full order book, and fund further development - like buying a Mac. If I had my time again, that could easily have waited.

So in short, make sure you have a way to monetise whatever you do, and don't find yourself having to re-scope your product because of supposed "popular opinion" of a vociferous minority. Be clear in your own mind what you are doing at the outset, and only waver if you are absolutely sure it is right and it won't jeopardise your schedule. This is not a hobby, this is paying your bills.

[janoc]

You will get a lot of responses I am sure, but there is a glaring omission from that video. How are you going to monetise your efforts? It just says the house costs money to build, but it conveniently doesn't say how that open source architect pays the bills.

Howard, that assumes that the only way to make money on is to keep the everything secret and sell the licenses to use it. That's certainly one way to do it, but not the only one. Not since a long time.

Ask companies like RedHat, SuSE or even Github how they are making money from open source. They aren't selling the code but services around it. Theoretically anyone can grab the same code and become a competitor, in practice it needs certain specialized knowledge and skills - which is what these companies are happy to sell you. Not everyone wants to become an expert on Linux servers, for example - so you pay a specialist to set it up for you. And whether or not the "code" is closed or open source does not really matter for the client at this moment - they are paying for the service. The code being open is an advantage from the support point of view, though - they are not locked in to a particular vendor and it also makes debugging of problems easier.

This "give the code away and charge for services" model is getting to be a more and more prevalent, because the "code" is becoming a commodity (except in some domains requiring specialized knowledge/skills). There are only so many ways one can build a database or a webserver, for example, so you aren't going to make a killing selling those (unless you are Oracle - but that's more because of industrial inertia and corruption than because of the qualities of that software).  And once that happens, there is no advantage to keep such code secret. In fact, it will only put you at a disadvantage because you are not going to get the bug fixes and security problem alerts from third parties which your competitors may be getting.

Now, I am not saying that you must open source your products. That's is up to everyone's decision. It requires a different mental model where you must stop thinking about the possibility of someone else "ripping off" your code because it is out there free to grab but need to have a clear idea how do you outcompete them instead, so that the customer spends the money with you and not on a cheap clone.

You must know exactly where is the added value which you are bringing. If all the value of your product is in that code, then you probably shouldn't open source it, because you will starve. On the other hand, if you have a sensible ecosystem around it and the code is not really *the thing* that is making the most money, it makes sense to open it up. It could bring you new business you wouldn't have had if the tools were closed and people weren't able to use them beyond what you have envisioned.

Just look at the embedded development tools - thanks to gcc/gdb being open, it is a defacto standard compiler/debugger for embedded programming. You would be hard pressed to find tooling that doesn't support it. That, in turn, has made life simpler for vendors of debugging pods, analysers and what not, because they know that if they support this combo, they will be able to sell their product no problem. The same for chip vendors - they don't need to build and maintain their own compilers and IDEs anymore (which was never a profitable business), just use gcc and voila, problem solved. Win-win for everyone, except for the sellers of the proprietary toolchains ...

Now when it comes to open sourcing hardware designs - that's a bit different story. With software it is simpler, with hw you may have those external constraints (like NDAs) which may prevent it. Fair enough. Concerning adding support for something like Linux in your product - just ignore those loudmouthed individuals.

On the other hand, publishing an API/protocol/whatever is applicable to your gizmo so that a 3rd party can actually add that Linux/Mac/Android/whatever support for the device is a good thing (e.g. if you are making a piece of test gear, having it working with Sigrok is always a good bonus).

Nobody can force you to support something you don't use and don't get paid for - just don't make it hard for others who would often do it even for free for you if the documentation was available. That's often the problem - most vendors make only a Windows driver for something and say they don't support anything else. Fair enough, but then they don't publish the interface/protocol of the device neither so that someone else can actually do the work without resorting to complex reverse engineering. And I am not talking about something super secret there where it could be kinda understandable but things like a wireless receiver for a gamepad (yay, Microsoft!).