International Patent Law

bipedalhumanoid

Hi All,

So a web based service provider holds a patent registered in the US only.

What is stopping me from copying the patented invention on a server that exists outside of the USA and selling my service on internationally, including to US residents?

Would I be deemed to be trading in the US by not blocking US residents from accessing the site? Would the US courts have any kind of jurisdiction?

Anyone know of any legal precedence for this?

Thanks in advance,

Bip

bipedalhumanoid

This is totally hypothetical by the way. I'm simply trying to better understand some of the nuances of patent law. I've been researching case law for days and can't find a clear answer to this question.

bipedalhumanoid

There is a case, Microsoft vs AT&T in the states where AT & T claimed that microsoft had breached their patent on text to speech software.

Microsoft won the case on appeal because they had only distributed the software to countries other than the USA and the copies made for distribution were created outside of the USA.

MS would have been in breach if they created the copies inside the US and then shipped them overseas.

So the answer to my original question all comes down to whether or not it works the other way. A foreign based company selling an online service to the USA that is in breach of a US patent. It would seem fair to me that that would be considered a patent violation, but I can't find a case to verify that.

http://en.wikipedia.org/wiki/Microsoft_v._AT%26T

Peregrinus

I don't have a cite, but it stands to reason that the patent law of any country would prevent you from selling into that country from abroad in breach of a local patent. If that were not so the law would be easily evaded and a local patent would be useless.

bipedalhumanoid

Peregrinus wrote: »

I don't have a cite, but it stands to reason that the patent law of any country would prevent you from selling into that country from abroad in breach of a local patent. If that were not so the law would be easily evaded and a local patent would be useless.

That's exactly what I'm thinking.

But is selling a service to US based customers from a server in Europe the same thing as sending them a CD where they'd be using the patented invention on their own PC in the US?

Can a US based customer benefit from the patented invention being run in another country, where that benefit only comes from the output of the patented invention?

Peregrinus

If you're provide the service to a customer in country A, then you are selling the service into country A.

What exactly is the subject of the patent? The service? Some process or equipment used to provide the service? Can you make your example a bit more concrete?

Carawaystick

I'd have a look at the
GIF patents
the PGP arms exporting issue
and look at what happens to gambling site owners transiting the US, where US citizens have been able to gamble


My wild guess is that if you didn't sell to USians, and were based outside the Us, then there's no issue.

GUIGuy

Well there are 4 related questions are interesting:
1. Whether 'purely software' inventions should be patentable at all. In most countries there has to something physical to patent. Software can be copyrighted but not patented.

2. Whether the US patent is valid at all, or is just trolling. The US dropped the prior art/obviousness requirement in the 80's because 'everything is obvious' after the fact. So they introduced the first to file system where you don't have to prove the validity of the patent to get protection... validity is challenged in court.

3. Hazy jurisdictional differences... AllofMP3.com was perfectly legal in Russia because it paid royalties in Russia according to Russian law. Under Russian law the transaction took place in Russia not in the customers country... so it was within its rights to pay lesser royalties in Russia. Russia changed the law under US pressure so it could join WTO.

4. 'Placeshifting'. Normally if you purchase a software/service from country A while located in country B, country B might deem that the transaction has taken place in country B e.g. gambling. However, its perfectly possible to remotely login into a server located in country A from country B. No service has been provided directly in country B, all services are sold from country A to accounts hosted in country A. A user in country B is perfectly able to remotely control/view the server/account in country A... so there has been no export. The customer has remotely controlled and viewed activities based in another country... AFAIK there's no tax on that yet.

bipedalhumanoid

GUIGuy wrote: »

Well there are 4 related questions are interesting:
1. Whether 'purely software' inventions should be patentable at all. In most countries there has to something physical to patent. Software can be copyrighted but not patented.

It's more complicated than that. The EPO has a rule of thumb that software cannot be patented, but they have issued over 20 thousand software patents. Sometimes a method implemented by the use of software can be deemed to be an invention and could be patentable if:

- It's development required an "inventive step"
- Is novel to the extent that it is not obvious to a skilled person in the relevant field
- has industrial applicability

This excludes anything deemed to be a business method BTW. You cannot patent business methods.

Copyright on the other hand is automatic. It makes no sense to say something can be "copyrighted" as that implies some kind of registration/approval process.

Copyright offers extremely weak protection to software because anyone can copy the basic concepts without copying the work. It stops someone making an unauthorised copy of your software, it doesn't stop them stealing your ideas and creating their own version.

Under copyright law in Ireland software is considered a "literary work" and is treated like one.