Excellent article and research by Ms. Kasznik in which she reports that over 70% of "unicorns" (pre-exit startup valued at $1B or more) hold no patents. In the 26 years I've been practicing patent law, I've seen software go from "not very patentable" to "very patentable" and now to "but should we patent it?" Several factors have changed to shift the decision points.
First, the change in which all (by default) patent applications are published to the public even if a patent isn't granted shifted the decision point considerably.
Second, the self-inflicted invalidation rate of the USPTO of it's own products (patents) has seriously over-corrected for the old troll problem. Expense has always been a consideration, so when you mix the three factors, other options sometimes win out.
One option that wins out is to simply out-pace the competition, to commit to continuous, rapid innovation, which drives even higher R&D budgets. Patents can be very slow to issue, and sometimes by the time they do, the technological leading edge has moved way beyond what they represent.
Another option is to simply try to keep trade secrets, which is very concerning given the mobility of the global tech work force, lack of practical enforceability of NDA's and non-compete agreements especially in some countries where outsourced R&D is prevalent, and the expense of attempting doing so.
When we counsel our clients, we put all the options on the table. Not selling a patent service is part of our consulting service. Patenting is not always the best approach for every situation, but when it is, we are positioned to be the best patent drafting and prosecution service available.
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