Software patents

stephenlane80

Hi,

I am currently thinking about a new software product that i may or may not proceed with,

One thing that i havent give too much thought to before is software patents but an infringement case i have recently come accross has brought it to my attention,

My questions in relation to existing patents are:

Is it advisable to hire a software patent attorney to carry out patent due diligence ?

If not, whare does one start to make sure they are not facing a patent lawsuit down the road ?

I would plan to market the product on the net which would mean i have to satify global patent requirements, i am asking this question from the perspective of an SME,

I know there are legal discussion boards here, but i would be interested in what software developers have to say,

Cheers

S

croo

In a matter of law why do you think a developers opinion is important?

For what it's worth here is one...

Software patents are not enforceable in Europe, though there is strong lobby attempting to get them recognised and also strong lobbies against. Strictly speaking the European Patent Office will NOT accept applications for software patents but it has routinely issued such patents under the guise of "process" patents... they in most cases are however simply not enforceable... this is my understanding of the situation currently.

But the question of "distance selling" to a customer in a country (say the USA for example) that does enforce software patents is an interesting one. Are you selling to them in the USA or are they purchasing from you in Europe? Europe requires non-European firms distance selling into Europe to register for VAT so there is a strong case that USA law would apply in the case of yous selling into the USA from here.

> Is it advisable to hire a software patent attorney to carry out patent due diligence ?
Again, taking the USA as an example, if you found that your solution was patented there already what would you do? Not sell anywhere? Not sell in the USA? Not develop the application?

From what I read of software patents in the USA, with their submarine patents and who knows what other tricks, it seems to be to be nearly impossible to avoid some conflict.. this is the land remember that allowed the patenting of their ubiquitous "Jelly & Peanut butter" sandwich! But I'd guess that even there unless you are making millions I don't know if anybody bothers as it is not worth the effort.
So if you are a startup, personally I wouldn't bother until you are making millions then you can afford to indulge yourself with a lawyers.
The worst case scenario is I believe you would be required to change you solution to avoid the use of that patent or simply license the technology from the current patent holder.

Of course a patent lawyer, I'm sure, would have a different opinion

Civilian_Target

Frankly, software patents are useless unless:

- Your business is filing patents and suing other people
- You are sufficiently big to persue the case against the people who will use your software

You will lose a lot of time and money patenting something that you should use to build it. What you do can be patented one year from launch anyway, so if you start creating something and it begins to become successful, then is the time to patent it.

Otherwise you end up with a worthless patent, someone else acts on your idea, and you haven't the money to persue it.

stephenlane80

croo wrote: »

In a matter of law why do you think a developers opinion is important?

Because i could get good answers like that !

Its seems like very vague "inventions" can get patented in the US, i read a US case recently about some crowd that patented ETL (think SSIS or DTS services). Basically they successfully filed a patent in the US in 1998 for the a software system that loads data from multiple data sources into a datawarehouse. Is that not just a common sense thing to do ?! anywho they are sueing all the mojor ETL vendors to to the tune of 160 billion, with the hopes of making some settlements and hovering up some free cash ! i just thought that was ridiculous, so from what you say i don't think some thing like that would fly in europe ?

@Civilian_Target, i totally agree with you there, i don't think software should be patentable, it just means the companies with the biggest laywers and balance sheets will win each time,

Also it seems to stifle innovation, somebody could patent a software product with out implementing it, then cash in when some poor so and so actually goes to the bother of coding it

Hobbes

stephenlane80 wrote: »

Also it seems to stifle innovation, somebody could patent a software product with out implementing it, then cash in when some poor so and so actually goes to the bother of coding it

To file a patent is non-trivial and takes years and any kind of prior art can potentially invalidate the patent. It is also very expensive.

Your patent has to detail exactly how to implement the system, so even if you don't build it someone could from your disclosure.

Most of the patent troll companies don't sue "some poor so and so". They go for who can pay the money.

...

Is it advisable to hire a software patent attorney to carry out patent due diligence ?

If you plan to file a patent then yes.

If not, whare does one start to make sure they are not facing a patent lawsuit down the road ?

If you come up with a unique idea that no one has thought of yet then you can also publish rather then patent. This will invalidate any disclosures filed after that point, but your invention is not protected.

All patents are visible when filed and there are sites that you can review patents currently going through the system. For example http://www.peertopatent.org/ . If you find something that matches what you are making then you could potentially infringe.

But if you want serious advice I would recommend you talk to a patent lawyer.