Journal GigsVT's Journal: Patents: Double Or Nothing 6
I'm working on a larger version of this, which I can hopefully run past some lawyerly type friends, but here's the short of it that I promised:
Right now, if I want to develop a product or software, I am faced with a tough choice:
1. Do a patent search, likely find some vague patents that might cover what I want to do, or
2. Do no patent search and just live dangerously.
If I do the patent search and decide to proceed, I may be liable later on for triple damages since I knew about the patents that I am accused of infringing.
If I don't do the search, I might clearly infringe on a patent I could have worked around with a different implementation.
What leads to this situation is that no one really knows what a patent covers until the court rules on it. Most defendants would consider that a little bit too late for them.
So here's the proposal, I call it "Double or Nothing":
1. If you are distributing a product, you incur no patent liability until you are notified of infringement.
2. If you immediately cease the alleged infringing action or accept the license terms, then you can not be sued.
3. You can continue the action that is the subject of the alleged infringement, without paying royalties, and be sued for damages from the notification date forward only.
4. In either case however, you may immediately sue the patent holder, challenging the patent claim. You may sue for any legal costs associated with the case, and lost revenue caused by ceasing the alleged infringing action.
5. Under this system, all actionable infringement is willful, so there's no need to let treble damages influence your choice to research patents.
Right now the patent holders have little to lose. It's easy for some small patent holding company to spam out infringement notices with impunity. This system would balance the risk, you'd better be damn sure of infringement before you start sending out notices of infringement, as you then become liable for lost revenue and court costs for every company that decided to cease the infringing action and challenge your patent.
This doesn't fix everything, but it would sure fix some of the abuses that are really hindering innovation.
Patents (Score:2)
I would add a third approach to your list: Pay someone (patent lawyer) to do the search and inform you if there is something you need to know. This would at least drastically reduce the number of patents of which you are personally aware, compared to doing the research yourself.
Re: (Score:1)
Re:Doesn't fix it for me (Score:1)
The idea is that huge amount of money becomes a huge liability on the part of the patent holder if they were to lose. Thus there should be less challenges unless they are really sure they could win, because the counterclaim could break them if they were to lose.
Right now, the defendant carries all the liability, and that's not right. If you don't cease under today's system, you become triply liable. This system would reduce the potential liability of defendants, and i
Re: (Score:2)
Re:Doesn't fix it for me (Score:1)
Or are you expecting to only infringe on a patent
I don't have any personal case in mind here.
If the patent holder is holding "legitimate" patents (that is, they pass all the usual tests for being non-obvious, novel, etc), then why would they fear a counter-suit?
If the patent holder is holding legitimate patents, then it isn't really an abuse of the system. This proposal would reduce abuses of the patent system without changing the way it works fundamentally. It's a practical compromise that I think most
Non-trivial software almost certainly infringes (Score:2)
The mono developers have repeatedly said that basically all non-trivial software today must infringe at least one patent http://nat.org/2004/may/#20-May-2004 [nat.org]. I've also seen similar sentiments from GCC developers http://gcc.gnu.org/ml/gcc-patches/2005-01/msg01720 .html [gnu.org]. And I've seen similar reactions from linux-kernel developers ... the main advise seems to be, don't ever go looking for patents (which, amusingly is the exact opposite intention of them in the first place) but work around them if you are m