I think you've hit on a good point for those considering pursuing patents. Before investing large sums of money on patenting, it is important to figure out how you will identify infringement.
Often, product data sheets, technical specifications, user guides, administrator guides, white papers, case studies and/or other technical and marketing literature are of use, but other times the under-the-hood details are unavailable and reverse engineering and/or discovery is required to confirm infringement.
In general, I recommend considering at least the following factors in connection with performing a cost/benefit analysis before pursuing a particular patent:
- Likelihood of use by others
- Ease of detecting infringement (e.g., reverse engineering, marketing materials, product specifications)
- Novelty and breadth of coverage
- Likelihood the invention will be used in current/future product(s)/service(s) of the patentee
- Useful life of the invention (“stop gap” vs. foundational)
- Cost of patent application(s) - preparation and prosecution
- Extent to which the invention is in an emerging field of technology
- Importance of the particular product(s)/service(s) in which the invention is used
- Importance of the invention to the particular product(s)/service(s) in which it is used (e.g., does it affect the consumer’s buying decision?, are there reasonable non-infringing alternatives?)
- License or cross-license potential
- Availability of trade secret as an alternative (e.g., is the invention exposed to the outside world?)
- Importance of a patent in strengthening the overall patent portfolio
- Importance of a patent to fundraising activities (e.g., venture capital or other investors may require IP protection before considering investing)