Can a Website Idea/Function get a Patent?

[Wednesday15]

I have a unique idea for a website that is targeting a niche market. There is one similar website out there that says "Patent Pending". The US Patent Application was filled in 2004 and published in 2005. Both the website and Patent status still says "Patent Pending".

My website will have some functions that are different and concentrate on a niche market but at the same time share the overall concept.

Two questions:
1. Do I have to worry at all since this other website still say "patent pending" 10 years later?
2. How different does a website and its functions need to be, not infringe on a patent?

Thanks

 

[quincy]

I have a unique idea for a website that is targeting a niche market. There is one similar website out there that says "Patent Pending". The US Patent Application was filled in 2004 and published in 2005. Both the website and Patent status still says "Patent Pending".

My website will have some functions that are different and concentrate on a niche market but at the same time share the overall concept.

Two questions:
1. Do I have to worry at all since this other website still say "patent pending" 10 years later?
2. How different does a website and its functions need to be, not infringe on a patent?

Thanks

The patent pending status of an invention does not prevent others from making or using or selling this invention. A patent must be issued before the inventor who has a patent pending is a patent owner.

It is impossible for anyone on a forum to say "how different" your software program or business method or other process needs to be to avoid infringing on another's rights. You need your particular website function personally reviewed by a patent attorney in your area.

 

[FlyingRon]

Let's divide the problem into two sections.

First is the the existing site. Patent or NOT, the fact that they've got that out there in commerce means that the idea is no longer novel. If they filed their patents and followed through to get them issued, then really they shouldn't say pending (nor should they say patent pending if they haven't applied yet). Either way, the embodiment of any inventions in their deployed website is no longer novel and therefore not patentable by anybody (except for the timely application they made).

Now is your idea. If you have an additional invention that builds on theirs, and it meets the requirement for patentability, you can certainly pursue your patent.
You can't just "make things different" to make things patentable. A patentable invention has to be an entirely new concept. Just because your website is original to you doesn't mean what it is based on is patentable as being novel and nonobvious. Patents are distinct from copyrights which only require originality.

Second, a "website" isn't an invention (well certainly not anymore). You'd have to embody a machine or method that does something novel and non-obvious. Software patents are typically methods. A new encryption algorithm for example, Amazon's one-click process for ordering (though some of it's claims have been challegned), etc...

 

[quincy]

Here are two links that might be informative, the first to 35 US Code §122, Confidential status of applications; publication of patent applications, and the second to 35 US Code §154, Contents and term of patent; provisional rights:

https://www.law.cornell.edu/uscode/text/35/122

https://www.law.cornell.edu/uscode/text/35/154

Even when the status of an invention is patent pending, if an inventor PUBLISHES his application prior to the patent issuing, he may be able to obtain royalties from anyone who is aware of the invention (through perhaps seeing the published application). This assumes the invention is eventually granted a patent, however.

I don't know why there is a delay in the issuance of one in this case. It is possible, I suppose, that the inventor no longer has an interest in pursuing the patent and has intentionally (or defensively) disclosed his invention - to prevent others from obtaining a patent. With disclosure it would be considered prior art. There are several reasons why an inventor might want to do this but, without knowing the specifics here, there is not much reason to go into them.

While some information can be provided about patents on a forum like this one, it will still be necessary for you to sit down with a patent attorney in your area for a personal review of your specific invention and a look at the invention whose "overall concept" is the same as yours.

Good luck.

 

[Wednesday15]

Here are two links that might be informative, the first to 35 US Code §122, Confidential status of applications; publication of patent applications, and the second to 35 US Code §154, Contents and term of patent; provisional rights:

https://www.law.cornell.edu/uscode/text/35/122

https://www.law.cornell.edu/uscode/text/35/154

Even when the status of an invention is patent pending, if an inventor PUBLISHES his application prior to the patent issuing, he may be able to obtain royalties from anyone who is aware of the invention (through perhaps seeing the published application). This assumes the invention is eventually granted a patent, however.

I don't know why there is a delay in the issuance of one in this case. It is possible, I suppose, that the inventor no longer has an interest in pursuing the patent and has intentionally (or defensively) disclosed his invention - to prevent others from obtaining a patent. With disclosure it would be considered prior art. There are several reasons why an inventor might want to do this but, without knowing the specifics here, there is not much reason to go into them.

While some information can be provided about patents on a forum like this one, it will still be necessary for you to sit down with a patent attorney in your area for a personal review of your specific invention and a look at the invention whose "overall concept" is the same as yours.

Good luck.

If I would provide a patent attorney with the patent application number, would he be able to research this particular patent pending? So if the inventor no longer has any interest in pursuing the patent and while it will prevent others from obtaining a patent for, can it be used without pursuing a patent? Thanks for your answers, much appreciated.

 

[Wednesday15]

Thanks for all suggestions, very helpful. If I would provide a patent attorney with the patent application number, would he be able to research this particular patent pending in more detail?

So if the inventor no longer has any interest in pursuing the patent and while it will prevent others from obtaining a patent for it, can it be used a long as a patent is not pursued? Thanks

 

[quincy]

Thanks for all suggestions, very helpful. If I would provide a patent attorney with the patent application number, would he be able to research this particular patent pending in more detail?

So if the inventor no longer has any interest in pursuing the patent and while it will prevent others from obtaining a patent for it, can it be used a long as a patent is not pursued? Thanks

If you have the patent application number, you can find out information on the patent-pending invention by yourself, without the help of an attorney.

By accessing the Patent Application Information Retrieval on the USPTO site, you can view the documents filed by the inventor and the exchanges made between the inventor and the USPTO. Here is a direct link: http://portal.uspto.gov/pair/PublicPair

You will want to rely on a patent attorney in your area, however, to determine what you can and cannot do with your own invention - and this will depend in large part on what you (or your attorney) can find out about the patent application already filed with the USPTO.

Good luck, Wednesday15.