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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?
Do you really need to patent the software to sell a good product nowadays?
It's 11pm, do you know what your deamons are up to?
Seriously...write something up and send it to one of the anti-patent groups involved in the Bilski stuff. Worst that can happen is that they ignore it.
The only change I can believe in is what I find in my couch cushions.
Incorporate to protect your existing business and personal assets. Then just start the software company. It is unlikely anyone will sue until you have enough assets to make it worth the effort, and most likely you'll never get to that point. Another option is to open source the software and sell support and consulting contracts. If anyone sues, you can claim the software doesn't generate any revenue and thus no damages. Of course it won't keep you from getting dragged into court anyway. Plus, since I'm not a lawyer, if you follow my advice you are screwed anyway. Nobody has ever gotten rich without taking some risks, and in my opinion, the risk of a patent troll taking interest in you is small enough to just do it.
Get the Nolo book about how to form an LLC. Read it. Form the LLC. Transfer ownership of the application to the LLC and make sure this is unambiguous. Then have the LLC sell your software. Be sure to use the LLC in a clear and unambiguous fashion. Distribute profits to the members immediately upon receiving them. If a big awful patent challenge occurs and you can't afford to oppose the bad guy, then you can have the LLC declare bankruptcy and the big awful patent owner can't pursue the profits that you have already distributed to the members. Also, lobby your senators and representatives for software patent reform, assuming you live in the US.
This may be sacrilegious in this crowd, but fear of patent suits is one of the major (perhaps *the* major) reasons that many companies don't open source more software. Device drivers are one of the most common areas where this problem crops up: if they open sourced their drivers, others would have lots of material to base a patent suit on. What others don't know about, they can't sue about. It sucks, but the system is what it is.
Since he did innovate, I fail to see your point.
He's afraid to make that innovation available to others.
This guy seems to be a little dim in that he could just do a patent search. Instead, he wants advice from people on /. .
If you actually read the other comments, you'll see that people get advised by their companies legal departments that doing a patent search is actually a rather bad idea.
"a little dim", indeed.
So, any pointers or links to a "how-to" guide for writing briefs? I own a small software consulting service, would love to participate, but really don't have the time to do extensive study on how to file my comments. Even a template would be OK, as I can easily modify one to suit my needs.