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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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  • 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.

  • Yay for patents (Score:5, Insightful)

    by CopaceticOpus (965603) on Thursday September 03, 2009 @05:16PM (#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-slashdot@@@hackish...org> on Thursday September 03, 2009 @05:16PM (#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 MathFox (686808) on Thursday September 03, 2009 @05:16PM (#29304809)
    So far, software patents are still not enforcible in EUrope. And the EU economy is bigger and doing better than the US.
  • by geekoid (135745) <dadinportland @ y a hoo.com> on Thursday September 03, 2009 @05:22PM (#29304879) Homepage Journal

    It only makes it worse if you continue to sell it. My presumption was that if they found out it had been patent, they would stop selling it, and shut there yap.

    There is no difference between finding and still selling it and having a lawyer tell you it's there and still selling it.

    But yeah, Hire a lawyer.

  • Duh!!! (Score:4, Insightful)

    by esconsult1 (203878) on Thursday September 03, 2009 @05:34PM (#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!

  • by Trepidity (597) <delirium-slashdot@@@hackish...org> on Thursday September 03, 2009 @05:36PM (#29305045)

    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.

  • Re:One suggestion (Score:3, Insightful)

    by AigariusDebian (721386) <aigariusNO@SPAMdebian.org> on Thursday September 03, 2009 @06:00PM (#29305265) Homepage

    Or go work in a sane country that does not have software patents (all except US and Japan) and donate to organizations that work to stop software patents in US (EFF, FFII).

  • Hire a lawyer (Score:4, Insightful)

    by Mr. Freeman (933986) on Thursday September 03, 2009 @06:04PM (#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.
  • Forget it (Score:1, Insightful)

    by Anonymous Coward on Thursday September 03, 2009 @06:06PM (#29305321)

    Are you ready to spend $1,000,000 to get the patent AND enforce it? If not forget the patent. If it sells and is really really great then someone may duplicate it and if they have more capital then they will bury you without a patent but that is a whole bunch of ifs and mays.

  • by The Empiricist (854346) on Thursday September 03, 2009 @06:13PM (#29305379)

    Actually, you should have stuck with hire a lawyer. Apparently knowing about the patents you infringe upon makes your situation worse. So apparently you are better off not looking at existing patents.

    It is becoming more difficult for plaintiffs to establish willful infringement [wolfgreenfield.com]. 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.

  • by rworne (538610) on Thursday September 03, 2009 @06:29PM (#29305533) Homepage

    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.

  • Re:Don't search (Score:3, Insightful)

    by Zordak (123132) on Thursday September 03, 2009 @07:05PM (#29305825) Homepage Journal

    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 yourself. In the best case scenario, OK, you get a patent, and good for you, there's no inequitable conduct. You were never obligated to do a search anyway. But the whole point of a patent is it gives you the right to sue somebody when they infringe. Problem is, as soon as you sue, the defendant will be scouring the world for prior art. The defendant is going to find that reference you would have found. It's much better to find the reference yourself, and then draft your claims around the reference. Now let the bad guys find it. You've already factored it into your claims.

    And from a willful infringement point of view, I still tell my clients that they're better off knowing what's out there and what they're up against. Seagate has made it harder to make out willful infringement on somebody who just had a bare knowledge of the existence of the patent. So my casual, non-legal advice that nobody should rely on is go ahead and search the prior art and talk to your attorney about what you find.

  • Re:On sale bar (Score:3, Insightful)

    by Zordak (123132) on Thursday September 03, 2009 @07:11PM (#29305883) Homepage Journal
    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.
  • Re:Form an LLC. (Score:3, Insightful)

    by tobiah (308208) on Thursday September 03, 2009 @07:23PM (#29305979)
    That's a good personal defensive move and good for your taxes, but doesn't protect your product from trolls and infringers.
  • Re:Hire a lawyer (Score:5, Insightful)

    by RobinH (124750) on Thursday September 03, 2009 @07:38PM (#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.

  • by Anonymous Coward on Thursday September 03, 2009 @07:48PM (#29306167)

    If you produce any product at all, you are at risk for patent violation lawsuits.

    That is part of what sucks so bad about the current state of the patent system.

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

    by pclminion (145572) on Thursday September 03, 2009 @08:47PM (#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?

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