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How To Survive a Patent Challenge? 221

Posted by timothy
from the realistic-steps dept.
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?
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How To Survive a Patent Challenge?

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  • by sweatyboatman (457800) <sweatyboatman&hotmail,com> on Thursday September 03, 2009 @04:13PM (#29304759) Homepage Journal

    Hire a lawyer.

    Though as a rule of thumb if you're worried about the cost of hiring a lawyer, then your software probably isn't going to run afoul of any patent trolls.

    Patent trolls generally don't sue people with no money.

    • I'll add to that. If your idea truly is a good one, build a company out of it, and go to VCs for funding. They'll take a pound or two of flesh, but will have experience in navigating the minefield that is patentland (at least they will if they're good). You're probably a brilliant IT person, but unless you've run your own business before, you're not a business person.

      The IT landscape is littered with talented IT folks who were eaten alive by the sharks of the IT industry (read: Mr Gates). Get some h
    • Re: (Score:3, Insightful)

      by rworne (538610)

      Patent trolls generally don't sue people with no money.

      That's bad advice. Patent Trolls love to sue little guys to just get a settlement or a judgement. Either way, it helps to bolster their case for when they go after bigger fish with deeper pockets.

  • Don't search (Score:2, Interesting)

    by Anonymous Coward

    It's half sarcastic, but I've heard more than one person say they don't do patent searches, because willful violation is treble damages. Might be better not to know.

    And no, I'm not a lawyer.

    • they don't do patent searches, because willful violation is treble damages

      That is bizarre reasoning. Since they're still paying damages at the end of the day.

      Ostensibly a patent search would reveal that your product is patented and therefore you can't sell it without permission from the inventor. So either, you get permission or you change your product so it's no longer infringing.

      the third option (the one implied by the quote above), continue selling infringing product in the hopes that you don't get caught is stupid and anyone who does that deserves to pay triple.

      • Have you tried reading a patent? It's complete gobbledygook. On purpose, so that they can confuse a jury and stretch their claims to anything they can vaguely relate to. Anyway, even in my field of expertise, I have absolutely no idea what the patents say. No fucking idea. So trying to read them is a complete waste of time anyway.

        the third option (the one implied by the quote above), continue selling infringing product in the hopes that you don't get caught is stupid and anyone who does that deserves to pay

      • by tepples (727027)

        So either, you get permission or you change your product so it's no longer infringing.

        And do what about the products that you have already sold?

    • Re: (Score:2, Interesting)

      by gujo-odori (473191)

      This is absolutely true. I used to work for a Very Large, Well-known, and Widely Reviled Software Company in the Pacific Northwest. One of the things the rep from Legal tells you during the onboarding process is to never, ever do patent searches. If there is a patent lawsuit over something you've done and discovery shows that you did a patent search, that's enough to change infringement from accidental to willful. It's even worse if your search uncovered the patent that you are later accused of violating. I

      • by tepples (727027)

        I used to work for a Very Large, Well-known, and Widely Reviled Software Company in the Pacific Northwest.

        You mean like Nintendo of America? Even Microsoft fanboys hate Nintendo.

    • Re:Don't search (Score:5, Informative)

      by reebmmm (939463) on Thursday September 03, 2009 @04:47PM (#29305143)

      I am a lawyer, and this is common advice. Typically willful infringement is not the issue, but it could be. In order to prove willful infringement, "a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent." (In re Seagate Tech., LLC., 497 F.3d 1360 (Fed. Cir. 2007)). In other words, was the accused infringer acting recklessly when they made, used or sold a product. Simply finding a prior art patent that may cover your invention may not rise to that level. Moreover, if you know about it, then there's a chance you can avoid infringement altogether.

      But, the more common rationale is that it might later raise inequitable conduct questions if you perform the search and FAIL to disclose the results of your search to the patent office during prosecution of the patent application. In that case, you find good art and you fail to disclose it to the patent office with intent to deceive the office. Naughty naughty.

      There are benefits to do a search. First, a good, well-documented search can be very useful in avoiding unnecessary patent prosecution. There is no need to go in ignorant of what's out there and incur needless additional prosecution costs. Second, if you actually submit the art during prosecution, it will be on the face of the patent when it issues and the burden increases in order to use that art to invalidate the patent. This is often overlooked.

      But with that said, anyone contemplating infringement or patent prosecution should, first, shut up and not talk to anyone and, second, hire a lawyer.

      That is all.

      • Re: (Score:3, Insightful)

        by Zordak (123132)

        To supplement what you're saying a little (this is not legal advice, so nobody rely on it), from a patent prosecution perspective, there is really no downside to doing a search. You want the best art you can find in front of the examiner, because as you said, it raises a strong presumption that your invention is patentable over that art once it issues. Even if you're thinking, "I'll just remain blissfully ignorant of the prior art so the patent office can't cite it against me," you're really not helping y

  • by andkaha (79865) on Thursday September 03, 2009 @04:15PM (#29304789) Homepage

    Do you really need to patent the software to sell a good product nowadays?

  • On sale bar (Score:5, Informative)

    by DRJlaw (946416) on Thursday September 03, 2009 @04:16PM (#29304793)

    [I] so far have only deployed it as a 'consulting' project with two other small companies (who love it).

    If you don't bring this to a patent attorney within a year of your first deployment (assuming that you haven't made major changes to what you think are the patentable aspects), your question may soon be moot.

    "A person shall be entitled to a patent unless... the invention was... in public use or on sale in this country[] more than one year prior to the date of the application for patent in the United States." 35 USC 102(b) [uspto.gov]

    • Re: (Score:3, Interesting)

      by langelgjm (860756)

      The key word there is "public." If he's just working on an individual basis with clients, it very well may not count.

      The classic example of public use or sale was a guy who designed a special type of corset for a friend's wife, who went around wearing it for a year, telling everyone about it. Then someone else started selling the corset, and the original inventor tried to patent it, but wasn't able, since it had been used in public for a year. (I might have some minor details wrong, but that was the gist of

      • by sharkb8 (723587)
        It's not the use that'd be a problem, it'd be the sale more than one year before the filng date. evean an offer for sakle can bar the applicaiton.
        • Re: (Score:3, Insightful)

          by Zordak (123132)
          Actually, they would both be a problem. The friend's wife doesn't even have to go around telling everyone about it. If she's using it for its intended purpose in public, even though nobody can see it, it's still public use. It's really not hard to trigger a bar date. The best advice is to just file now.
  • Yay for patents (Score:5, Insightful)

    by CopaceticOpus (965603) on Thursday September 03, 2009 @04:16PM (#29304797)

    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?

  • by Trepidity (597) <delirium-slashdotNO@SPAMhackish.org> on Thursday September 03, 2009 @04:16PM (#29304805)

    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.

    • by geekoid (135745)

      you mean besides going to their site and doing a search?
      or hiring someone to do it for you?
      Or just patenting it and see if it gets rejected?

      • Re: (Score:3, Insightful)

        by Trepidity (597)

        I'm not talking about the patentability of his particular novel claim, but whether the rest of his implementation, in its more mundane parts, will step on some BS patent. That seems to be his main worry, and it's pretty much unavoidable--- there are a whole lot of overbroad patents out there, of the Amazon One-Click and IBM Twitter Updates variety.

  • by MathFox (686808) on Thursday September 03, 2009 @04:16PM (#29304809)
    So far, software patents are still not enforcible in EUrope. And the EU economy is bigger and doing better than the US.
    • He doesn't have to emigrate, just to sell stuff here. After all, the money that he will make there, and is well-tunneled past duties, will be worth more stuff in the USA.

      But of course Sweden has nice girls, and Switzerland has, as we determined in an earlier "Ask Slashdot" about emigration, a large number of positive sides, apart from the nice nature, the money there, the relative independence from EU regulations, and the relatively nice grassroots government system. :)

      • Assuming that he is in the U.S., he would still be violating U.S. patent law by making the invention within the U.S.
    • Yes, Europe is the place to sell his stuff. The US is a nightmare as a businessman making new products. If you want to sell other people's product, it's fine.
    • by mrboyd (1211932)
      Just remember than European market is not as well integrated as the US's. You're talking about 27 (or so) different countries with different language/cultures/law. Targeting Europe in a way that you reach a market a big as the US means running at least 12 different marketing campaigns in 12 different languages. And no you can't just try to speak English to French, Italian, German, Spanish it just won't work.
  • by db32 (862117) on Thursday September 03, 2009 @04:16PM (#29304813) Journal
    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.
  • Knowledge is King (Score:4, Informative)

    by BoRegardless (721219) on Thursday September 03, 2009 @04:18PM (#29304839)

    Start learning to read and understand patent claims and the differences in patent classes and subclasses. Hiring a lawyer to do it well will cost you more than you can afford AND you won't really know how thorough he was in his patent searching and analysis (or whether he just hired a portion of it out, which is common).

    Searching & Reading is all free at www.uspto.gov

    Various places & publications talk about hows and whys. The USPTO wording or language needs to be understood not unlike any jargon.

    If existing patents "read" right on top of your idea "claims", then the chances of getting issuance are almost nill.

    Even if you can patent it, there remains a question if you can actually get substantial income from it and that is the biz game.

  • by xzvf (924443) on Thursday September 03, 2009 @04:20PM (#29304851)
    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.
  • >>> How To Survive a Patent Challenge?

    threaten a countersuit ... see if you can get them to end up paying you
  • Form an LLC. (Score:5, Interesting)

    by Shandalar (1152907) on Thursday September 03, 2009 @04:21PM (#29304863)
    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.
    • Re: (Score:3, Insightful)

      by tobiah (308208)
      That's a good personal defensive move and good for your taxes, but doesn't protect your product from trolls and infringers.
  • A company isn't going to sue you over patent infringement unless you have something worthwhile to take (IE, lots of profits). If/when that day comes, you should have by then saved up enough money to hire a decent lawyer to deal with those issues for you.
    • A company isn't going to sue you over patent infringement unless you have something worthwhile to take (IE, lots of profits).

      Capitol Records successfully sued an individual for over a million dollars for petty copyright infringement.[1] What makes your assertion true of patents and not of copyrights?

      [1] Petty meaning that the extent was nowhere near the extent of the infringement investigated in Operation Fastlink.

  • Ideas (Score:2, Flamebait)

    by sconeu (64226)

    "There are several very good, possibly patentable ideas within it"

    BZZZT!!!! And thank you for playing. Here's your lovely parting gift. Yes, the USPTO has gone insane, but you're not supposed to be able to patent an idea.

  • Not to worry. Nobody else does.

    In the very unlikely event it happens:

    If you do get challenged, all you have to do is know how to play the game.
    There are probably a dozen ways to invalidate any patent. Prior art. Usage in interstate commerce
    more than a year before patenting. Obviousness. Uselessness.

    Just have your lawyer send their lawyer a letter stating that you've looked over their patent and there are 343 possible grounds for challenging the validity of their patent, so how's about we just "cross-l

  • by haemish (28576) * on Thursday September 03, 2009 @04:32PM (#29304983)

    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.

  • Honestly, a patent is RARELY helpful. Good ideas are a dime a dozen - it is much harder to recognize one than to come up with one.

    Truthfully, if you want to run run a business, the secret is rather simple. 1. Work hard. 2. Be flexible, 3. find and hire great employees.

    The patent only comes into play AFTER you have proven yourself a success and other people start copying you. If you can, hide your success. That will do more to protect your business model than anything else.

    • Parent is right.

      According to Paul Graham, software startups don't need to worry about patents [paulgraham.com]:

      We tell the startups we fund not to worry about infringing patents, because startups rarely get sued for patent infringement. There are only two reasons someone might sue you: for money, or to prevent you from competing with them. Startups are too poor to be worth suing for money. And in practice they don't seem to get sued much by competitors, either. They don't get sued by other startups because (a) patent suits are an expensive distraction, and (b) since the other startups are as young as they are, their patents probably haven't issued yet. [3] Nor do startups, at least in the software business, seem to get sued much by established competitors. Despite all the patents Microsoft holds, I don't know of an instance where they sued a startup for patent infringement. Companies like Microsoft and Oracle don't win by winning lawsuits. That's too uncertain. They win by locking competitors out of their sales channels. If you do manage to threaten them, they're more likely to buy you than sue you.

      If you think you have a good product, start working in getting it to market. If you get to a point where you're successful enough to be sued for patent infringment, you will have enough resources by then to deal with that situation.

      By the way, Paul Graham [paulgraham.com] has many interesting essays about software startups

  • Duh!!! (Score:4, Insightful)

    by esconsult1 (203878) on Thursday September 03, 2009 @04:34PM (#29305011) Homepage Journal

    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!

  • Be rich enough to survive a lawsuit long enough to prevail in court.

  • And by free I mean "without software patents". Then when you have made some money, you can still sell to non-free countries, because you can 1. actually pay that lawyer, 2. have prior art on your side.

  • by H4x0r Jim Duggan (757476) on Thursday September 03, 2009 @04:52PM (#29305183) Homepage Journal

        In the case Bilski v. Doll [swpat.org], the Supreme Court is reviewing the patentability of software for the first time since 1981. This is a very rare chance to fix things, and you're exactly the type of case they want to hear.

        For the most part, briefs are being submitted by the mega corporations and the groups of patent lawyers. Ordinary programmers and small businesses are not participating, and they're exactly the groups that are bearing the costs and restrictions of software patents.

        Please help spread the word. I'll be sending out more info about this in the coming days via the EndSoftwarePatents [fsf.org] mailing list.

  • by rockmuelle (575982) on Thursday September 03, 2009 @04:54PM (#29305207)

    So, I was in a similar situation with a mobile app recently. There weresome novel components and some components that most likely infringed on existing patents.

    To help put my mind at ease, I spent some time with (and money on) a lawyer. It was worth every cent. We talked about different components that could be patented, he did a prior art search, and we discussed how to handle any claims brought up by holders of related patents. At every step, I gained a much better insight into the realities of patent law and dispelled many myths and prejudices gained over the years from slashdot. Based on the results of this interaction, I decided not to pursue a patent at this point and I feel much more comfortable about my app's relationship to existing patents.

    If you choose to do it, make sure to go in prepared:

    1) Have a good written description (with screenshots) of your application prepared that highlights the novel components and those parts that may be covered by existing patents.
    2) Have a list of similar apps
    3) Have a timeline of any public presentations/publications you've made of your app.
    4) Understand your business model and have at least a 2 page executive summary of your business plan prepared

    (1) and (2) will save you time/money with the lawyer. They'll need this information to help with patent searchers and to develop claims. The more work you've done ahead of time, the less you'll pay a lawyer to do. Don't worry about trying to write claims, just get a good english description of things. (3) matters for patents. In the US, you have a year after publication/release to file. Overseas, you can't file after publication/release.

    (4) will help you decide how much money to spend on the process. If youre (realistic) business model only shows you generating $10k over the lifetime of your product, it's probably not worth spending any time with a laywer. The amount of revenues you project will help determine how much IP protection you're willing to pursue (i.e., pay for :) ). Just for some numbers, a patent will run you $10-20k up to the initial filing. The early search, however, will cost less than $5k (in my case around $1500). If you're serious about the business, the cost of the search shouldn't bother you.

    Anyway, I hope this is a more useful "hire a lawyer post"...

    -Chris

  • You are not the first person to create that algorithm. Someone has already developed it, probably on a PDP back in the day. Even if you did, it was built on the unpatented work of thousands of others.

    You're looking for copyright, as in protecting your particular implementation and not your "original" concept. Seriously, you thought you'd cruise into Slashdot and find a lot of pro-software-patent types?

  • Hire a lawyer (Score:4, Insightful)

    by Mr. Freeman (933986) on Thursday September 03, 2009 @05:04PM (#29305301)
    "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.
    • Re: (Score:3, Interesting)

      by Veramocor (262800)

      One actual solution is to hire a patent agent. This person is an engineer who has passed the patent bar but has not gone to law school. They are allowed tpo prosecute (file for and obtain a patent) but not litigate in front of a court. Like any other profession there are good ones and bad ones.

      However, patent agents will be much cheaper than a patent lawyer.

    • Re:Hire a lawyer (Score:5, Insightful)

      by RobinH (124750) on Thursday September 03, 2009 @06:38PM (#29306103) Homepage

      Your post seems reasonable, but having just gone through incorporating and worrying about it myself, there's nothing wrong with asking non-lawyers about the experience. Most small software business owners who have looked into it would be good people to ask. Most of them *have* talked to lawyers and in my experience, everyone seems to be getting the same advice. There's also lots of people who post about these experiences online, and taking them in aggregate, there is useful info about there.

      Something you have to keep in mind about lawyers: they make their money by selling you fear, just like insurance companies. If they had their way, they'd want you to spend all your startup capital on lawyers "just to be safe", but then you'd have no money or time left to actually develop your product. It's easy to get distracted by this stuff, but there are a lot more things that can go wrong in a software product launch than just a patent suit. In fact, from what I've read all over the place, it seems very unlikely.

    • Re:Hire a lawyer (Score:4, Insightful)

      by pclminion (145572) on Thursday September 03, 2009 @07:47PM (#29306573)

      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".

      I refuse to accept that the legal system we are all obligated to conform to can only be interpreted by some wizard class. It reminds me of my days in Catholic church -- "Don't read the Bible. You're too stupid to understand it correctly. Instead, you must be told by a properly trained member of the clergy what the Bible does or does not say." That's a load of horse shit.

      Once the law becomes so convoluted that only a specialized class of people are able to comprehend it, we are then completely subjugated by the legal system. The power to create law ultimately derives from the people. Therefore, laws should be comprehensible to the people. Otherwise, how are we supposed to know whether the laws are being applied as we intended them?

      • Re: (Score:3, Interesting)

        by ephraim (192509) *
        You can refuse to accept it all you want. But the fact is that somebody with training and experience in ANY area will always know more than somebody without the same training and experience.

        (Caveat: I disagree with your suggestion that a lawyer is a "wizard" and also disagree with your attempt to equate the reasonable suggestion that somebody hire a lawyer to do complex legal work with the idea that "the legal system ... can only be interpreted by some wizard class.")

        If you wanted to design a new jet airp
    • It's taken nearly 10 years and more money then I'm going to disclose on /.

      However, we now have the big stick to beat the people that copied our product into submission.

      My suggestion above all else is this:

      Don't just hire a lawyer, hire a GOOD lawyer. You don't say where you're based, so I can't give you any direct suggestions. We spent a boatload of money preparing our patent only to find out that the lawfirm (well regarded in the area) we hired to do it didn't have a clue WTF they were doing. They resultin

  • Are you able to tell us what your application does? I'm afraid I still can't solve you problem, I just ask out of personal interest, since it's apparently nifty and all. :-) Mabye it's even something I would like to buy from you!

  • Unless you know for a fact that you are infringing one or more patents just go ahead and put your product on the market. If someone thinks you are infringing and are worth bothering with they will contact you. There are no criminal penalties or statutory damages for patent infringement.

  • Hmmm (Score:3, Informative)

    by the eric conspiracy (20178) on Thursday September 03, 2009 @06:07PM (#29305837)

    Other than a generic "hire a lawyer!", are there practical steps a software author can do here?

    Hire a GOOD lawyer and do it QUICK. It may already too late because in the US you have one year to file a patent after you offer it commercially. After that one year their is statutory bar to ever getting a patent on the invention.

    You may already be too late in which case there is nothing that can be done.

  • I have talked to lawyers about this, and they generally tell you to not worry about patents at the beginning. Basically this is because they'll only sue you because either they want money or they want to shut you down. You don't have enough money to be worth sueing. You also probably aren't taking away enough of anyone's business for them to both with the cost and distraction of launching a lawsuit. What I was told was basically, if I got sued, that meant I was successful because I had enough money to b

  • You have a year from first sale to get a patent filed from what I was told. I'm not however sure how this relates if you had your clients sign a contract regarding your work or something.

    Look, I've filed two patents...both had software and hardware components. It was a complete waste of my time. You can expect your first round to get rejected outright...and your second round might take years. What is the point? You will waste about 1k if you do it yourself and way more if you have a lawyer do it. What I
  • The lawyer will just tell you that the only way to avoid being sued is to not sell the product. Lawyers are great at "no".

  • Okay, here's the skinny. If you're writing software, you're violating somebody's patents. Sorry, no way around it. So, what do you do?

    1. Incorporate so that you are not personally bankruptable
    2. Never, EVER visit patent web sites (damages automatically triple with wilfull infringement)
    3. Don't explain how you do anything, just what you do
    4. Cross your fingers
    5. Profit! (draw money from the corporation before it gets sued)

  • by FreeUser (11483) on Friday September 04, 2009 @04:33AM (#29308929)

    Seriously, don't bother with the US Market. Europe is currently software-patent free, as is China and much of the oil-rich middle east. Other markets abound as well.

    If you form an LLP or LLC as others suggested, you might consider incorporating in a European company and selling your product in markets where software patents do not exist.

    In addition, as others have mentioned you should file an amicus brief for the Supreme court opposing software patents, write a letter (or better yet, lobby) your local representative to repeal software patents, and patent a few ideas of your own to use against anyone who comes after you.

    As for open sourcing being a threat, that is probably the new meme Microsoft shills will begin spreading to try and undermine the underpinnings of the free software social contract ("share and share alike"), but it is highly debatable whether or not it actually increases risk. Microsoft didn't exactly open source word, or any of the numerous other products they sell that have been found to violate third party patents, so source code availability or secrecy doesn't appear to have any effect on your exposure to litigation one way or the other. But it makes a good soundbite, one I'm sure proprietary software vendors and monopolists are drooling over.

    If you do open source your product, GPL v. 3 may offer you some of the litigation protection you need. IBM, Sun, and others have certainly felt it does ... your situation is different of course, and nothing will give you perfect protection from American litigiousness except to stay out of markets where software patents are considered valid. Luckilly that means you can sell your product in most of the world, and with America's economic decline and the ongoing, chronic weakness of the dollar, you might find yourself earning quite a bit more by casting your net further afield.

    Best of luck, whatever you decide to do.

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