I've had to navigate these waters while doing hardware development. A long time ago I made the mistake of going to engineering first rather than filing for a patent. As a less experienced engineer I wanted to get a (hardware + software) product built and into the market. It still took over a year's worth of a serious effort to get it done. To me, at the time, filing for a patent seemed like both a waste of money and valuable time. I despised the idea of having to translate my technology into bullshit-ease. Like I said, I just didn't have a lot of experience in that domain at the time.

I finally got the product to market. It hit a nerve and went like gangbusters, selling several hundred thousand dollars in product in the very first quarter. Not a bad launch. Six months later a competitor comes out of the woodwork with a product that was 60% of mine at 50% of the list price. A friend of mine called me thinking that I had licensed the technology because the competing company had even copied my marketing language verbatim. What a shock.

You see, hardware R&D is very expensive. The "R" part can take months, even years. Depending on the field of application and the problem being solved costs can be staggering. One example of this are medical products. If you can bypass the "R" and go straight to "D" you can put out a product for a lot less money. that's exactly what happened to me. Not only did my competitors bypass "R" but they also benefited from the work and expense I went through to identify a market.

That's when you look back and want to kick yourself in the ass for not having taken the time to file for a patent. Lesson learned the hard way.

Many years and lots of mistakes later I emerged with far more wisdom about both engineering and business. One of my observations was that patents are nothing more than necessary weapons of war. Business is war. No question about it. And so, whether you like it or not, if your opponent is using guns you have to have guns as well. Not having patents exposes you to an indeterminate level of danger. As we have seen over the years, both legitimate patent holders and trolls can surface out of nowhere and almost shut you down. Having a granted patent you can point to gives you the ability to say "go away" with some authority.

Years ago I viewed the open culture of web startups with a degree of incredulity. Based on my experiences, I simply could not believe entrepreneurs would put it all on the table for anyone to see. That goes counter what you want to do in the hardware world. Keep it quiet and get it patented or you'll get screwed. That's the winning model.

While small software startups continue with the open philosophy, larger companies like Apple and others file patents at a furious rate. Interesting. Patents are expensive and very time consuming. Perhaps the disparity between small and large companies and what they can do with regards to filing software patents should be reason enough to abolish software patents. The little guys simply can't play the same game.

While I am decidedly anti-patent when it comes to software-only products I have trouble finding fault in the idea of patents for physical or hardware inventions. Don't get me wrong, I still want to see patents only be granted for real inventions. What constitutes a real invention? That's a whole new discussion. That said, the standard of proof should be harder and harder to meet as the years go by. Today it should be nearly impossible to get any kind of patent. Why? Because it is harder to actually invent anything new. Almost every patent I've reviewed (hundreds) are implementations or regurgitations of implementations obfuscated enough to make them look like an invention.