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Microsoft's Internal Advice About Patents
BigPoppaT writes "Eric Brechner writes a best practices blog called Hard Code for Microsoft under the name I.M. Wright. His most recent post sounds like an endorsement of open source development (and does end with a call for Microsoft developers to participate in the shared source community). But even better is his advice regarding patents: 'When using existing libraries, services, tools, and methods from outside Microsoft, we must be respectful of licenses, copyrights, and patents. Generally, you want to carefully research licenses and copyrights (your contact in Legal and Corporate Affairs can help), and never search, view, or speculate about patents. I was confused by this guidance till I wrote and reviewed one of my own patents. The legal claims section--the only section that counts--was indecipherable by anyone but a patent attorney. Ignorance is bliss and strongly recommended when it comes to patents.' Interesting advice from inside Microsoft. I wonder if Ballmer would agree that ignorance should be 'strongly recommended when it comes to patents'?"
Generally, I believe that if you are aware of prior art, you're liable for treble (triple) damages. If you're ignorant, you're only liable for normal damages.
MadCow.
I used to have a sig, but I set it free and it never came back.
Willful violation invokes statutory damages:
35 USC 284
When that doesn't apply, then you have to consider provisional damages:
35 USC 154.(d)(1)(B) Provisional damages:
The intent of willful ignorance is to insulate the company against statutory and provisional damages. As an engineer, this protects you, as well:
35 USC 271.(b):
-- Terry
If you can prove that you didn't know about the patent when you created the product
Actually, you need to prove that you performed due dilligence to avoid a multiplication of damages. It isn't enough to pretend that patents don't exist; the courts aren't quite that stupid (yet).
This is flat wrong. You have no duty to search for relevant patents. You can only be nailed for willful infringement if you actually knew of the patent you're infringing and did not reasonably believe you didn't infringe. It is up to the plaintiff to prove that you knew about the patent---usually by showing the letter he sent you that says, "You infringe my patent." You then show the letter you got from your patent attorney that says, "My reasonable opinion is you don't infringe this patent," or "My reasonable opinion is that this patent is invalid over X,Y,Z prior art."
Note that willful infringement has nothing to do with whether you infringe. You can infringe and get hit for very substantial damages on a patent you knew nothing about. In that case, searching might have saved you some pain, as you would be aware of what you were facing.
DISCLAIMER: I am a patent attorney, but I don't represent you. This is not legal advice and you don't get to rely on it. Yes, my .sig already says that, but some people turn them off.
Today's Sesame Street was brought to you by the number e.
Then it shouldn't be a valid patent. Further evidence that the patent system in the US needs to be scrapped and rebuilt from scratch.
If I were to look at your code (presuming you're a coder [for the sake of argument], and presuming I'm *not* a coder [which I am, actually]) and say, "I can't understand this - you must be a terrible coder and your programming language must be broken," would that be fair?
The patent claim attempts to do something unique in the domain of language: it attempts to describe, in the simplest and logically clearest possible manner, the bare minimum requirements of an enabled invention. That's not exactly easy... in fact, it's been called the most difficult type of legal drafting.
The complexity of claim language arises from 170 years of claim-oriented patent drafting. (That's not an exaggeration - the concept of a patent claim arose in the Patent Act of 1836.)
The language of the patent claim has evolved dozens of times as practices have changed (peripheral claiming, acceptable claim styles, rules of interpretation derived from case law.) It may be incomprehensible to you, but those trained in patent law understand not only what a claim covers, but [i]why[/i] it's written that way.
Patents are ensconced in the Constitution, "To promote the progress of science and useful arts." Even after a patent expires, it is supposed to contribute to humanity's corpus of knowledge and science. How does a patent, written in language that can't be understood by an actual person trying to actually get something useful done, serve to promote the progress of science and the useful arts?
A person having "ordinary skill in the art" (i.e., in the technical field into which the patent falls) should be able to read the specification (and review the figures), understand the invention, and be able to practice it without undue experimentation. That's a legal requirement of a patent, and if it's not met, the patent examiner may reject it as insufficiently disclosed. The claims, on the other hand, define what's covered by the patent... in light of the specification.
- David Stein
Computer over. Virus = very yes.
The reason why patent attorneys recommend against searching for patents is that once you know about a patent that is relevant to the one that you are filing, you have a duty to disclose it.
Hmm... your statement is correct, but it's not really "the reason why patent attorneys recommend against searching." I certainly wouldn't recommend a client not search for this reason, and I've never read that motivation expressed.
If prior art is out there that might render your invention non-novel or obvious, it's much better to discover it as early as possible. If the prior art is found early, the application can be drafted or prosecuted differently. If found late, added expense may be involved (e.g., a refiling or reexamination), or the bought-and-paid-for patent may have to be abandoned. Worst-case scenario, the patentee may waste tons of money developing a product line and suing a potential infringer, only to have the patent invalidated at trial.
Contrary to popular belief (especially here), neither patent owners nor patent attorneys are in favor of bad patents.
- David Stein
Computer over. Virus = very yes.
Once again wrong. When someone sends you a cease and desist letter, you either get counsel to write an opinion letter which will tell you (1) whether he thinks the patent is valid and (2) whether he thinks you infringe. If you assert the advice-of-counsel defense, the law is very settled that the patentee can get that letter, despite attorney client privilege and work product. Now this is called "opinion counsel", and there is a per se allowance on opinion counsel's letter. However, the law is not so settled on trial counsel and in-house counsel. In Re Seagate (think it was Fed. Cir. 2007 offhand) says no, but judges and special masters are still allowing it.
-- I'm a patent attorney (not yours though). This is not legal advice and you don't get to rely on it. (and I'm not Zordak from above)