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How To Survive a Patent Challenge?

timothy posted more than 4 years ago | from the realistic-steps dept.

Patents 221

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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221 comments

Rob Malda's penis is tiny (-1, Troll)

Anonymous Coward | more than 4 years ago | (#29304703)

It's so tiny that he gets confused with a toddler wearing a pubic wig when he goes to the glory hole every night.

Re:Rob Malda's penis is tiny (0, Funny)

Anonymous Coward | more than 4 years ago | (#29304747)

and you know this because...?

Just kidding. Everyone knows he's hung like a hamster.

Re:Rob Malda's penis is tiny (-1, Offtopic)

Desler (1608317) | more than 4 years ago | (#29304829)

and you know this because...?

Just kidding. Everyone knows he's hung like a hamster.

Re:Rob Malda's penis is tiny (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#29305097)

Congrats on quoting trolls and getting modded down. You sir are a fucking retard.

Is it a first post application? (-1, Redundant)

Anonymous Coward | more than 4 years ago | (#29304711)

  It works well!

hire a lawyer IS a practicle step. (0)

geekoid (135745) | more than 4 years ago | (#29304729)

That saiod, document it's inventor dates, and copies of original information and maikl them to your self.

Of course, it it is something already patent, then there is nothing you can do and you are already in violation.

Look into doing a patent search.

Re:hire a lawyer IS a practicle step. (4, Informative)

glop (181086) | more than 4 years ago | (#29304781)

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.
I think this should really not exist as the main argument for patents is that they are a way to share knowledge, so anything that discourages reading them is counterproductive.

In re Bilski (1)

Nefarious Wheel (628136) | more than 4 years ago | (#29304849)

It might help however, to know a bit more about the law yourself if you have the time. At least, read the news about it. Some things - like business processes - can't be patented in some countries. Google "in re Bilski" for some good threads.

Re:hire a lawyer IS a practicle step. (2, Insightful)

geekoid (135745) | more than 4 years ago | (#29304879)

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.

Re:hire a lawyer IS a practicle step. (3, Insightful)

The Empiricist (854346) | more than 4 years ago | (#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.

More (Re:hire a lawyer IS a practicle step.) (1, Informative)

Anonymous Coward | more than 4 years ago | (#29305413)

...Apparently knowing about the patents you infringe upon makes your situation worse. So apparently you are better off not looking at existing patents...

It depends. The law has changed recently so old advice (e.g. above quote) may not be relevant anymore. But the law (as now changed) may not persist which is why old advice (e.g. above quote) may be the conservative approach. Yep. the first practical step is:

1. Hire a (good) lawyer

2. Pursue as many patents as you can based on available money and merit. Get them filed. ASAP. Don't disclose anything (more than you already have) until you do.

Problem w/ the money part? Get an investor. You can sell equity, or an interest in the consulting revenue stream, or an interest in just the patents ... sell enough to get the patents filed (and prosecuted to issuance). Got five patents you want to pursue? Need 50k? What are you offering?

Problem w/ the merit part? Here is a quick hack for a filter to find merit: Assume for a moment that nobody could ever reverse engineer what you are making/using/selling ... then ask yourself what part(s) of your product would you most want to keep secret (as trade secrets) so that you could continue to be successful in out-competing all the other competing products. Consider filing for patent protection for these meritorious parts.

3. Replace anything your read on Slashdot, including this, with what your lawyer advises.

Re:hire a lawyer IS a practicle step. (4, Informative)

CTalkobt (81900) | more than 4 years ago | (#29304803)

The rumor-gossip of mailing yourself documentation as a way to authenticate your invention date is not likely to stand up to any challenges in a court of law. It's all too easy to steam things open and modify or insert entirely new documents.

The best practical way would be to have a totally dis-interested 3rd party attest to a statement of fact describing the invention and have it notarized.

OB Disclaimre: I am an Slashdot know-it-all pretend lawyer and thus not allowed to legally recommend or make legal recommendations whatsoever - hence the above is my opinions and should not be interpreted as legal advice.

Re:hire a lawyer IS a practicle step. (2, Informative)

geekoid (135745) | more than 4 years ago | (#29304911)

Romor gossip? as someone who HAS seen it stand up in court, I'm going to have to call you out.

You should sign across the seal, and get it notarized. Yes I should have said that.

In fact my grandfather used that to sell inventions instead of a patent.

Re:hire a lawyer IS a practicle step. (1)

CTalkobt (81900) | more than 4 years ago | (#29304939)

It may stand up in court - however I can see it failing just as often.
Never attribute to a broad swath one particular instance of anything.

Re:hire a lawyer IS a practicle step. (1)

Trahloc (842734) | more than 4 years ago | (#29305343)

A signed, sealed, dated, and notarized item not standing up in court would be a really really crappy lawyer. The whole point of notarization is to legally document that something occurred. If it isn't valid then what the hell is the purpose of the entire profession?

Re:hire a lawyer IS a practicle step. (0)

Anonymous Coward | more than 4 years ago | (#29305019)

Sorry, I gotta call bullshit. This won't stand up in court in a million years for one reason: there are multiple ways of faking that and magicians have been doing so since before you or I were born; I can even cite the specific magic tricks where they bypass the "protections" you seem to think can't be bypassed. I'm sure your grandpa sold inventions but that method didn't protect him in the least.

Re:hire a lawyer IS a practicle step. (1)

NoYob (1630681) | more than 4 years ago | (#29305169)

Sorry, I gotta call bullshit. This won't stand up in court in a million years for one reason: there are multiple ways of faking that and magicians have been doing so since before you or I were born; I can even cite the specific magic tricks where they bypass the "protections" you seem to think can't be bypassed. I'm sure your grandpa sold inventions but that method didn't protect him in the least.

It doesn't matter how you think it can be faked. If the law allows something in court then it stands up in court. period.

Re:hire a lawyer IS a practicle step. (1)

tomhudson (43916) | more than 4 years ago | (#29305041)

Bullshit, bullshit, and yet more bullshit.

You may have seen it "stand up in court" for other purposes, but not for patents.

Search for "poor man's patent' - what you're saying is an urban legend.

What your grandfather may or may not have done is of no import in today's world.

Re:hire a lawyer IS a practicle step. (0)

Anonymous Coward | more than 4 years ago | (#29305435)

IT might work. In a post I made earlier today, that works with the IRS and postmarks. The problem is the Post Office will postmark a stamp with its first day of issue on other days so collectors will not lose out. Thi swent to court. You could say get the stamps on your tax return post marked as April 14, yet not send them in until say June 30th. This way your form is still legal - though the atx returns have to be dated by the filer, but the courts and the IRS seemed to hav emissed that point. However, tis could be done with prior art as well. This leads to another possibility that was shown on Saturday Night Live I believe, a delivery service for when it had to be there yesterday. They would deliver the package in a beaten up box and say that you sent it a week before but that it got lost in their "system."

Re:hire a lawyer IS a practicle step. (1)

Zordak (123132) | more than 4 years ago | (#29305541)

The best practical way would be to have a totally dis-interested 3rd party attest to a statement of fact describing the invention and have it notarized.

If it's really important, it ought to be worth the $105 to file it as a provisional patent application. Then there is no question that you were in possession of the invention, whatever it may be, as of that date. It may not be detailed enough to be much use as a real application, but at least it's irrefutable evidence that you had the idea at a certain point.

And if you've written the Great American Novel and you're afraid of it getting ripped off, the filing fee is a whopping $35, and you can do it all online by filling out a form.

Re:hire a lawyer IS a practicle step. (3, Informative)

Umuri (897961) | more than 4 years ago | (#29304815)

http://www.plagiarismtoday.com/2006/08/25/the-myth-of-poor-mans-copyright/ [plagiarismtoday.com]

The mailing things to yourself doesn't work pretty much ever.

Re:hire a lawyer IS a practicle step. (1)

geekoid (135745) | more than 4 years ago | (#29304973)

A. we are talking about patents. not copyright. If you don't know the difference you probably shouldn't talk about it.

B. I wasn't clear. You get it notarized with a signed letter stating you created it. you mail it to ourself, you seal that up in another envelop and get that notary stamp across the flap.

Sorry to bust your bubble, but I have seen that work in court for a patent. Considering the cost of a patent, I don't see why someone wouldn't just get a patent, but that's irrelevant.

Re:hire a lawyer IS a practicle step. (4, Informative)

Rei (128717) | more than 4 years ago | (#29304855)

When I formed my business and needed to establish patent protection around my lead product, my first instinct was to hire a lawyer. However, my father advised me to contact the USPTO for their input on whether they thought it necessary first. So I called their help line and asked them whether it would be wise to hire an attorney rather than do it myself. Their response was, basically (to paraphrase), "Duh! This is a complex legal matter!"

Hire an attorney.

Re:hire a lawyer IS a practicle step. (4, Informative)

Zordak (123132) | more than 4 years ago | (#29305691)

Also be sure to hire a registered patent attorney (he or she should have a USPTO registration number). Even if your attorney does other IP work, or is a successful patent litigator, if he's not registered, it's illegal for him to file your patent application, or even help you prepare an application to file for yourself. I'm not surprised that Joe Public doesn't always know this, but I am surprised at how many general practice attorneys don't. A good place to start is the USPTO's Attorney/Agent Search Page [uspto.gov], where you can find a patent attorney in your area. Or you can just hire me [jw.com], of course :-)

Another point: The poster seems to have confused patentability and infringement. Basically, if your idea is new, non-obvious and useful, it's patentable, whether or not it infringes another patent. For example, if you came up with a brilliant improvement to Google's search algorithm, you could get a patent on it, even though you would infringe Google's patent if you implemented it.

Re:hire a lawyer IS a practicle step. (1)

vantar (1123257) | more than 4 years ago | (#29305123)

This whole mail it to yourself/poor mans copyright thing is not a form of protection. At least this is the case in the US Source: [copyright.gov] For a much more detailed breakdown of why the mail it to yourself approach is bad I would recommend this page [copyrightauthority.com]

Re:hire a lawyer IS a practicle step. (1)

Zordak (123132) | more than 4 years ago | (#29305555)

Plus, the cost of a real registration is only $35. Seriously, how hard up do you have to be?

Re:hire a lawyer IS a practicle step. (1)

Planesdragon (210349) | more than 4 years ago | (#29305721)

That saiod, document it's inventor dates, and copies of original information and maikl them to your self.

NO. A postmark is not a notarized date. You could very easily mail an empty envelope to yourself, unsealed, and then seal it up.

To establish that you have something at a specific date, find someone who's a notary in your state who doesn't know you, and pay them the $1 to notarize it. Or just keep good records.

One suggestion (1, Interesting)

Anonymous Coward | more than 4 years ago | (#29304753)

Think about Patent Infringement Insurance / Intellectual Property Insurance

Hopefully your idea will be good enough that, if you get challenged, you will have made enough money to fight back.

Best of luck to you, and keep in mind that risk is at the foundation of business!

Re:One suggestion (2, Insightful)

AigariusDebian (721386) | more than 4 years ago | (#29305265)

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).

Re:One suggestion (2, Interesting)

moderatorrater (1095745) | more than 4 years ago | (#29305449)

To support this point, from the book Almost Perfect [wordplace.com] by W.E. Peterson,

Even if a successful company is fair and honest in every one of its business dealings, there will be a few lawsuits. The only way to avoid them is to stay unsuccessful and keep your pockets empty. As soon as you have something worth having, there will be someone else who will try to take it.

Generic advice is the best advice (2, Insightful)

sweatyboatman (457800) | more than 4 years ago | (#29304759)

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.

Re:Generic advice is the best advice (1)

ggraham412 (1492023) | more than 4 years ago | (#29304941)

Unless the software becomes popular, that is. Don't they have to sue infringers to maintain their patent? Or the next guy that comes along can point to the first guy and say, "You didn't sue him!"

Re:Generic advice is the best advice (1)

jsmiith (1274436) | more than 4 years ago | (#29304995)

You're thinking trademark. If that were the case the idea of defensive patents would not be as important.

Re:Generic advice is the best advice (1)

adolf (21054) | more than 4 years ago | (#29305115)

Patents (in the US, at least) don't need to be actively defended in order to stay valid. Trademarks, on the other hand, must be.

Re:Generic advice is the best advice (1)

religious freak (1005821) | more than 4 years ago | (#29304955)

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 help from those that have experience.

Re:Generic advice is the best advice (2, Insightful)

rworne (538610) | more than 4 years ago | (#29305533)

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.

Trade secret? (0)

Anonymous Coward | more than 4 years ago | (#29304773)

As well as not disclosing the source code, consider the code a trade secret. You know the highly vaunted 'protecting your valuable intellectual property". If the corporate scum can claim this why not the rest of us? Perhaps even a NDA for your customers to keep secret anything they may discover about your code? Of course, IANAL.

Don't search (2, Interesting)

Anonymous Coward | more than 4 years ago | (#29304775)

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.

Re:Don't search (1)

sweatyboatman (457800) | more than 4 years ago | (#29304875)

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.

Not bizarre: patents are INCOMPREHENSIBLE (1)

Nicolas MONNET (4727) | more than 4 years ago | (#29305099)

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 triple.

You never get "caught" infringing patents, esp. software patents. Well at least, you don't get "caught" if you show you didn't know about the patent, as in, you don't get punitive damages, or at least you don't get assraped half as hard. Hence the policy, I believe it's indeed verbotten to discuss patents on linux-kernel IIRC.

Re:Don't search (2, Interesting)

gujo-odori (473191) | more than 4 years ago | (#29305049)

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. It was made very clear that patent searches, if they were done at all, were to be done only by those paid to do so (that is, Legal).

Sounds crazy and bass-ackwards, I know, but that's how the (broken) system works.

Re:Don't search (4, Informative)

reebmmm (939463) | more than 4 years ago | (#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.

Chances are... (0)

Anonymous Coward | more than 4 years ago | (#29304785)

Unless you're stepping on someone's toes (muscling in on an existing market) nobody's going to notice or care. It doesn't sound like your little vertical application is going to be seen as a threat by Microsoft or Google, and I'm guessing not even Intuit. So go for it, milk it for all it's worth -- which, most likely, is not much.

On sale bar (4, Informative)

DRJlaw (946416) | more than 4 years ago | (#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:On sale bar (2, Interesting)

langelgjm (860756) | more than 4 years ago | (#29305031)

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 the story).

Re:On sale bar (1)

sharkb8 (723587) | more than 4 years ago | (#29305229)

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:On sale bar (1)

carbon_tet (596725) | more than 4 years ago | (#29305517)

The key words are "sale" and "use." Use is also a killer word because if the product has been used in its final (?) form for over 12 months, then it should, if I remember correctly, be distinctly -UN-patentable. Don't mess around - CALL a lawyer TODAY. The clock is ticking and you don't want to miss out on your big opportunity. Carbon_tet

Yay for patents (4, Insightful)

CopaceticOpus (965603) | more than 4 years ago | (#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?

Re:Yay for patents (0, Troll)

geekoid (135745) | more than 4 years ago | (#29304991)

Since he did innovate, I fail to see your point. ANYWAY, the system needs work, but it isn't broken. This guy seems to be a little dim in that he could just do a patent search. Instead, he wants advice from people on /. .

Re:Yay for patents (4, Interesting)

Timothy Brownawell (627747) | more than 4 years ago | (#29305129)

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.

Re:Yay for patents (1)

Attila Dimedici (1036002) | more than 4 years ago | (#29305575)

He's afraid to make that innovation available to others.

Which is the exact problem patents are intended to fix. Although it is the fear of the idea being stolen rather than the fear of being bankrupted because someone else thought of some part of your idea first.

Re:Yay for patents (0)

Anonymous Coward | more than 4 years ago | (#29305161)

Innovations that are not brought to market are not useful innovations.

unfortunately, not a lot of good answers (4, Insightful)

Trepidity (597) | more than 4 years ago | (#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.

Re:unfortunately, not a lot of good answers (1)

geekoid (135745) | more than 4 years ago | (#29304997)

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:unfortunately, not a lot of good answers (2, Insightful)

Trepidity (597) | more than 4 years ago | (#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.

Emigrate to EUrope? (3, Insightful)

MathFox (686808) | more than 4 years ago | (#29304809)

So far, software patents are still not enforcible in EUrope. And the EU economy is bigger and doing better than the US.

Re:Emigrate to EUrope? (0)

Anonymous Coward | more than 4 years ago | (#29304967)

And the EU economy is bigger and doing better than the US.

I'd enjoy reading how this is measured and concluded. Could you provide some analysis sources?

Re:Emigrate to EUrope? (3, Informative)

tomhudson (43916) | more than 4 years ago | (#29305195)

The EU economy is definitely bigger than that of the US. Just ask the CIA [cia.gov]

European Union: $18,85 trillion
US: 14,33 trillion

Re:Emigrate to EUrope? (1)

Hurricane78 (562437) | more than 4 years ago | (#29305145)

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. :)

Re:Emigrate to EUrope? (1)

AlmondMan (1163229) | more than 4 years ago | (#29305317)

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.

Re:Emigrate to EUrope? (1)

mrboyd (1211932) | more than 4 years ago | (#29305455)

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.

Write a amicus breif... (4, Interesting)

db32 (862117) | more than 4 years ago | (#29304813)

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.

It's not patentable (-1)

Anonymous Coward | more than 4 years ago | (#29304833)

I'm sure you could get patents on your 'innovations', but that's only because the patent system is completely broken. The 'ability to click on button A after having chosen an item from menu B' is not an invention. Unless you have actually come up with some novel hashing or sorting algorithm, nothing in your code is deserving of a patent. Copyrighting it is a perfectly reasonable thing to do, though.

Knowledge is King (3, Informative)

BoRegardless (721219) | more than 4 years ago | (#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.

Re:Knowledge is King (0)

geekoid (135745) | more than 4 years ago | (#29305023)

Professionals are just the professional. They no the system, and a god one reports exactly where you are stepping on someone toes, and what changes you can make to fix it.

yes, it's expensive.

Hire a lawyer or Just DO it. (3, Interesting)

xzvf (924443) | more than 4 years ago | (#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.

Mod parent up! (1)

schnablebg (678930) | more than 4 years ago | (#29305285)

The best advice. Protect your own ass and start selling. Worry about the patents when you've proven the software has value.

honest answer ... (1)

neonprimetime (528653) | more than 4 years ago | (#29304859)

>>> How To Survive a Patent Challenge?

threaten a countersuit ... see if you can get them to end up paying you

Re:honest answer ... (0)

Anonymous Coward | more than 4 years ago | (#29305017)

At the least you ought to read this:
http://www.audioholics.com/news/industry-news/blue-jeans-strikes-back

It is at least an amusing case of patent trolls and what can happen when you push back.

Form an LLC. (5, Interesting)

Shandalar (1152907) | more than 4 years ago | (#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.

You can't get blood from a turnip (1)

pak9rabid (1011935) | more than 4 years ago | (#29304907)

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.

Re:You can't get blood from a turnip (0)

Anonymous Coward | more than 4 years ago | (#29305399)

Not true, if you become a competitor and have a product they want, that's incentive enough to squash you, and buy the remains.

Ideas (1, Flamebait)

sconeu (64226) | more than 4 years ago | (#29304923)

"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, How the game is played... (1)

Ancient_Hacker (751168) | more than 4 years ago | (#29304953)

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-license" our "intellectual property" and fugeddaboutit?

Don't do an open source release (5, Interesting)

haemish (28576) | more than 4 years ago | (#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.

Work hard (1)

gurps_npc (621217) | more than 4 years ago | (#29305003)

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.

Duh!!! (3, Insightful)

esconsult1 (203878) | more than 4 years ago | (#29305011)

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!

Re:Duh!!! (0)

Anonymous Coward | more than 4 years ago | (#29305191)

And this is the thing that annoys the crap out of me.... :)

While you are right in a practical sense, he has already messed up his patent rights. He has already lost his filing rights in Europe (assuming the invention can be determined from looking at the product already distributed), and he has 1 year from the first sale to file to preserve his united states rights. This is why there are provisional patents (which cost $105 for a small entity to file last I checked) were created so you can buy yourself a year to test the market and determine if there is a valuable product worth a full patent to protect, and what parts should be protected.

Sell in free countries only! (1)

Hurricane78 (562437) | more than 4 years ago | (#29305069)

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.

Hire The (0)

Anonymous Coward | more than 4 years ago | (#29305071)

the thugs hired by Cheney et al. [youtube.com]

Yours In Vladivostok,
Kilgore Trout

3 Step Process (0)

Anonymous Coward | more than 4 years ago | (#29305179)

Step 1. Build time machaine
Step 2. Go back 50 years
Step 3. Mail yourself a registered letter explaining the idea in great detail.

PLEASE submit a brief to the SC in Bilski v. Doll (5, Informative)

H4x0r Jim Duggan (757476) | more than 4 years ago | (#29305183)

    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.

I just hired a lawyer... (4, Informative)

rockmuelle (575982) | more than 4 years ago | (#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

Software patents are fucking gay (0)

Anonymous Coward | more than 4 years ago | (#29305209)

nuff said

Copyright. (1)

Just Some Guy (3352) | more than 4 years ago | (#29305213)

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 (4, Insightful)

Mr. Freeman (933986) | more than 4 years ago | (#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 (1, Insightful)

Anonymous Coward | more than 4 years ago | (#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.

Your nifty app (1)

Bromskloss (750445) | more than 4 years ago | (#29305345)

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!

I regret to inform you... (1)

MadKatAlpha (1393157) | more than 4 years ago | (#29305377)

Sir, I regret to inform you that I already have a software patent on nifty applications that help run personal businesses and those that may be used to help run almost any business. You should look elsewhere for idea inspirations. Please note that I also hold patents on items that are useful around the house, training routines that make your dog less of a jerk and design patents on expensive machines that go "bing!"

Bigger problem is that he may not own the software (1)

RiddleyWalker (734992) | more than 4 years ago | (#29305389)

Patents aren't necessarily the worst problem ahead for the poster. Another, potentially bigger problem he may encounter is that (depending on his contractual relationship with his current "clients") he may not own the software - they may claim that it was a work for hire. There position will be that the software was created for them and they are the "owners". In that case he doesn't just have to worry about the trolls he doesn't know...but also about the ones that have already paid him. Not all work created by independent contractors are "works for hire", though, so he may not run afoul of this issue.

A book for you: Patent Savy for Managers (1)

Osama Binlog (1305857) | more than 4 years ago | (#29305547)

BUY THIS BOOK. It's written by a patent attorney for problems like yours. You can get it from http://www.nolo.com/ [nolo.com] It cannot not give you all the answers. But, you will have a better understanding if you do need to talk to a patent attorney. The author does mention that a patent lawsuit costs 1-3 million dollars.

Quit borrowing trouble (1)

John Hasler (414242) | more than 4 years ago | (#29305549)

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.

Disclosure or sale undermines claim (0)

Anonymous Coward | more than 4 years ago | (#29305615)

Of course, speak to a lawyer - but, as someone who works daily on patent applications, I would point out that sale of the patentable material or use by a third party undermines your claims. You have, as I recall, 1 year from the date of disclosure or sale to file, according to the USPTO.

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