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How To Survive a Patent Challenge?
An anonymous reader writes "I have written a nifty application that helps me run my own business, and could really help in running almost any business. It has been abstracted well enough that it could very plausibly be made a sale-able product. There are several very good, possibly patentable ideas within it. However, they are overshadowed by virtually an infinite number of possible bs challenges to its more mundane parts. I'm rather fearful of bringing this to market for that reason, and so far have only deployed it as a 'consulting' project with two other small companies (who love it). Does anyone have suggestions about how to proceed?" Other than a generic "hire a lawyer!", are there practical steps a software author can do here?
Isn't it great to see how software patents can encourage innovation? (And by encourage, I mean scare away.) What could be a better example of how broken the system has become?
It sounds like you're confident that the core of the product is novel and not already patented. So the issue is accidentally stepping on a bunch of overly broad patents for stupid things? Unfortunately, the crux of the patent mess is precisely that: it stifles innovation because there is no good way to know you're not stepping on a bunch of stupid, overly broad patents, that will take a lot of money to litigate even if they turn out to be invalid.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
So far, software patents are still not enforcible in EUrope. And the EU economy is bigger and doing better than the US.
extern warranty;
main()
{
(void)warranty;
}
Look, 2 people "really like" the product.
You don't even know if it will be saleable. See, this is the thing that annoys the crap out of me. Right now, your product has zero value, because you have not started to sell it as yet. Absolutely zero.
Sell the darned thing first, see if people like it, if they do, then at least you have some stake in the marketplace and in any proceedings. You would have had the product out there, people may buy it, and you will have first mover advantage.
Right now, all you have is the possibility that someone "may" sue you, and thats just in your fevered imagination. Get coding boyo!
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"Other than a generic "hire a lawyer!", are there practical steps a software author can do here?"
HIRE A FUCKING LAWYER. Why on earth is it that people keep asking these questions when they know full well that no one here is a lawyer and half the posts are signed with "IANAL"? They have lawyers for a reason, that reason is to give you legal representation in matters involving the interpretation of the LAW. You need a lawyer, not a bunch of people on the interwebs claiming that "they've seen such and such a technique work", "long ago", and "once when my friend got sued by this one guy".
Are you really willing to risk your patents based on some advice you got off of the internet from someone whose name you don't know whose credentials you don't have and probably don't actually exist? If so, then by all means keep asking legal questions on a tech website. But your post makes it seem like you actually want credible legal advice, so stop asking slashdot and GO HIRE A LAWYER.
-1 disagree is not a modifier for a reason. -1 troll, flaimbait, redundant, overrated are NOT acceptable substitutes.
It is becoming more difficult for plaintiffs to establish willful infringement. Searching patents and reviewing their abstracts is unlikely to rise to the level of willfulness (unlike, say, ignoring a letter, sent by certified mail, that says "we think you may be infrining patent XXX for reasons A, B, and C" ). Willfulness is especially unlikey to be an issue if the patents are prioritized and one seeks legal analysis for those that seem most relevant.
Instead of looking at active patents and trying to find if a new product infringes on any of them, one could look at expired patents (along with books, articles, papers, etc.) to show that nearly everything in the new product is based on knowledge already in the public domain. Not only would this likely help in trying to invalidate claims, it would show a lack of willfulness.
Alternatively, the product developer could try to find third-party component suppliers to provide the non-core pieces. If the third-party component supplier indemnifies the product developer (which they really should), then damages can be shifted away. Even if damages aren't shifted away, the fact that someone else created the infringing pieces would make it difficult to show willfulness.