How do you go about finding out whether an idea you've had has already been patented?

Question

I have an idea for image copy-protection that I'm in the process of coding up and plan on selling to one of my clients who sells images online. If successful I think there would be a lot of people in a similar situation to my client who would be interested in the code also. I think this is a fairly unique idea that could be packaged into a saleable product - but if I did do this, I wouldn't want some big corporation decending on me with their lawyers after all my hard work. So before I put too much work into this I'd really like to know how I'd go about finding if this idea has been patented already and whether I'd get in trouble if I sold my product and if it would be worthwhile patenting the idea myself. Although I find the idea of software patenting abhorrent, it would be more to protect myself from the usual suspects than to stop fellow-developers from using the idea (if it is in fact a worthwhile one).

I live in Australia, so an idea of who to go and see and a ball park figure of how much money I'd be looking at having to pay would be fantastic (in orders of a magnitude: 100s, 1000s, 10s of thousands of dollars, etc).

Cheers

Iain

Answer 1

Unless you're a lawyer, or happen to be highly skilled in the field of intellectual property, the proper (read: only) way to do this well is to hire a lawyer to do it for you.

EDIT: I may have confused some facts, read the below answer for more detail.

Answer 2

First, eykanal's answer has things kind of backwards: patent prosecution is getting the patent office to issue a patent. Patent litigation is suing somebody for infringing a patent after it's issued. Finding out whether an invention has previously been patented is called a prior art search.

A patent attorney is not necessarily the right person to do prior art searching. I don't know the rules in Australia, but in the US you are not required to do a prior art search before filing for a patent. You are required to disclose any related art of which you are aware, but if you're not aware of something, you're not required to put any particular effort into finding out about it.

My personal (not legal) advice would be against doing (much of) a prior art search. If you decide you want to do it anyway, plan on a decent one costing in the range of tens of thousands of dollars. If you want to do some searching yourself, IP Australia has an online database of Australian patents. Given the normal rules (foreign patents usually count as prior art) you might also want to search on the US PTO and/or European Patent Office web sites. If you're going to do it, you probably also want to search some things like research papers and such. Google works reasonably well for this. There are more specialized databases as well, but most of them are oriented more toward law firms and such -- most of them are pretty expensive, require annual subscriptions, and some have antique interfaces that take considerable effort to learn to use at all well (e.g., Dialog, Westlaw, LexisNexis).

I'd note that eykanal is correct on his other point though: patent litigation is complex and expensive. Patent law in the US is sufficiently complex that even the judges can't understand what the cases very well -- in the US, around half of patent cases are at least partially overturned on appeal (i.e., a higher court determines that the lower court didn't try the case correctly). This is probably somewhat lower in other countries (that lack such wonders as the Markman ruling), but still non-trivial. Just as a reasonable starting point, figure that even a relatively small, simple patent litigation will cost at least a few million dollars.

Answer 3

I have started going through this process so I have some experience. Here's what you should know:

• There are a bunch of websites that offer a free patent search and they're easily found. Its useful to do a prior art search just to get a sense of what other people have done in the field and see what writing a patent entails.
• When a person applies for a patent there is a year review period before the patent is accepted. These patents have the status of “patent pending” and they won't appear in the search results that you get on the aforementioned websites, so even if you don't find anything in a prior art search you may still already be too late.
• Writing patents is really tedious and hard (I know cause I've tried it). I'm sure there's a range, but good patent lawyers are really expensive. Expect the whole process to take a few years and 10k+ in expenses.
• If you're going to get a patent make sure you get a good one (its worth the extra cost). There's nothing worse than paying for a patent only to find that your patent has holes and isn't useful to you.
• Look into doing a provisional patent. They're much less expensive, they last one year, you have exclusive rights to your idea and you can advertise your idea as “patent pending.”