Ask HN: Patents

[jmtame]

I'm developing a product, saw that someone building something similar has a "patent pending" on their web application. How much of a web application can be covered by a patent? For example, all of the web e-mail clients have pretty much the same basic functionality of an inbox, folders, sending and receiving, address book, etc.

What's the limit with patents and at what point should you worry about infringing? As long as it's not identical? Or should it not even come close to resembling it?

The scope is basically a fairly simple web application, calendar software would be a good example. How close can it be before it's considered patent infringement?

[noonespecial]

Patent Pending does not equal patent issued.

That said, the patent system is so far gone when it comes to software that you can patent anything. Everyone has. If you write "Hello World", you are infringing. A web form with a button? infringing. The power switch on the computer... ok, you get the idea.

Just do your thing. In software there's no such thing as infringing because the answer to "can I make a computer do X?" is always yes if you work hard enough at it. All of the paths to X will be different.

If you are successful enough for someone to actually sue you for infringement, take this as a compliment. You will also likely have the resources to mount a defense as well.

Worrying about all of that now is just premature optimization. If you succeed, you will be sued. That's just the business climate of today's market. Cross that bridge when you come to it.

[micks56 → noonespecial]

Yes, there is such thing as infringement in software.

These are a few notable settlements in the software patent field:

1. $106 million to Acacia from various companies throughout all computer industries in the first nine months of 2007.

2. $100 million from Apple to Creative for the iPod’s user interface.

3. $133 million paid by Microsoft and Autodesk for their software registration systems.

4. $80 million from Vonage to Sprint-Nextel for the right to use Vonage’s own telecommunications software.

5. “At least” $80 million from Vonage to Verizon for same; perhaps as much as $117 million.

6. $612 million paid by Research in Motion to NTP for the Blackberry email system.

Also, I am not sure spending $250k to defend a patent lawsuit is a compliment. I agree that worrying now is premature optimization, but the $250k to defend doesn't cover your potential damages.

I am not sure RIM took NTP suing them as a compliment.

[noonespecial → micks56]

RIM had to be huge before NTP bothered to shake them down form money. All of those examples above share the characteristics that they were huge successful companies when they were shaken down. The results were also fairly random.

I think it fits the model that once you are large and successful, the trolls will come out of the wood-work. The compliment is that you are big and successful enough to be worth a shakedown. Once you are the $250k to actually defend (its really more like $1 mil/year for up to 7 years) is chump-change to you at that point. The big problem is the more or less random outcomes of such trials.

Until you are making big money, you are not worth the time because a victory would be costly to the victor and you'd have nothing to actually turn over. If they won debt, you'd just close up shop, as there'd be no point in working to pay a troll.

When I say that "there's no such thing as infringement" I'm not talking in the made-up world of legal types. They could rule you infringing for tying your shoe if they had the right lawyers, I'm speaking from the realistic standpoint that no two software systems are ever really alike unless you outright steal a copy of the source. I've used the example before that 2 computers that factor large prime numbers look form the outside like a pair of beige boxes that do exactly the same thing, but inside they are likely worlds different. This confuses the lawyers, patent officers and uneducated outsiders and leads to the problems that the patent system now faces when it comes to software.

When you patent a machine, you have to show its inner workings and they have to be novel. When you patent software, you can pretend that the general purpose computer is the inner workings, and not the actual software. This lets you cheat and patent a concept directly, without proof that the inner workings are novel or even possible.

[vaksel]

Not a lawyer, but I wouldn't worry about it.

a) software patents are pretty useless nowadays, it takes so long to get it, that by the time you have it, your patentable technology is a $39.99 script people can buy.

b) Its not your problem to adhere to all issued patents, until someone starts suing you. I mean look at ANY site on the web, they are probably in violation of 200 patents. Chances are the "Add Comment" button has already been patented. So has the hyperlink I used to view your story. So has the term "flag"

c) Most of these "patents" are bullshit.

d) There is no guarantee that these guys will even get their patent approved.

e) You don't even know what they are trying to patent. For all you know, their patent has nothing to do with their technology, it could just be a patent for something stupid like "a way to display a hyperlink in a lime green bold times new roman font".

So personally I'd just go ahead and do whatever it is you want to do, because chances are there is prior art that you can cite to make anything they come up with invalid.

[michael_dorfman]

Don't "Ask HN"-- ask your lawyer.

Seriously: you're being offered a lot of free advice, some of which may potentially cause you significant problems down the road.

If you're serious about developing a product, you're going to need a lawyer at some point-- and it sounds like you've just reached that point.

[webwright → michael_dorfman]

Can't hurt to go in with a base of knowledge when talking to a lawyer.

There are plenty of people on HN who have had experience here and I think we're all smart enough to sort out the speculative responses from the responses that look like: "At my company (x43.com), we just went thru this and here is what I learned:"

[chaostheory]

disclaimer: I'm not a lawyer, I'm not giving you advice, and you should talk to a lawyer.

Just remember one really important thing: letting people know that you have knowingly infringed on a specific patent increases the damages awarded to the patent holder. Never talk specifics unless you're talking to your own lawyer.

[akd → chaostheory]

Yes! You must never have anything in writing that proves you knew about the patent. Make sure of this.

But don't worry about patents now. That's for lawyers to worry about.

[tstegart → akd]

Um, or they can just ask if you knew. Not putting it in writing only counts if you're going to back it up with lies in court. Otherwise, if you knew, you knew.

[hooande]

Patents cost a LOT of money to enforce. The odds of you being sued are very low. People will be able to issue you a cease and desist order on the cheap, but the odds of it ever going before a judge are equally low. Business methods patents are notoriously hard to enforce as well.

Many big companies collect patents to have as assets. They rarely actually enforce them because it costs too much money (even for them). While your product might dance around infringing on this patent or that, the odds of anyone actually doing anything against you are very low.

[micks56]

The short answer to how close you can be is you don't know till you end up in court. Now, for the longer explanation.

The Supreme Court of the US has ruled that patents can be obtained for "anything under the sun." Exceptions carved out by the same court are for laws of nature, maths, and abstract ideas.

So you can't patent F=ma, but things in web e-mail clients could be patented.

There is no way to tell if you are infringing without actually reading the patent claims. So until the patents are granted, you don't have anything to analyze.

Also, their patented claims do not have to be identical to what you are doing. If it is obvious to someone skilled in the art that what you are doing is a modification of what your competitor is doing, then that could also be infringement. This is why you see the language "in one embodiment" in patents. The drafters are not limiting themselves to the claimed implementation, but are trying to do a land grab that people skilled in the art would do after reading this application.

In legalese this is called the doctrine of equivalents. The United States section on the wikipedia page for doctrine of equivalents is currently accurate. You will see the standard there.

[sonink]

Just make something useful.

Forget about patents. Patent pending refers to a provisional application and is not legally enforceable. Essentially, anyone can get a 'patent pending' on anything.

Patents are important only if you have enough money to either sue someone or if you have tons of money to interest someone to sue you. Assuming none of the above is true, and as someone commented above, cross this bridge when you come to it.

[13ren]

I think there's no way to be safe from patents, except to be not worth suing. And since anyone can sue you for anything at any time, so there's no point fearing the uncertainty.

BTW: I've seen a strategy for avoiding patent infringement of a standard by using only 20+ year old techniques. If it was published over 20 years ago, any patent would have expired. Unfortunately, someone could have had a "submarine" patent (delaying issue of it) so you need to wit X years longer, where X is unknown...

Selden did it to automobiles: http://www.bpmlegal.com/wselden.html

[globalrev]

If I invent something and don't patent it I assume someone else can? But let's say there is some obvious invention noone ever patented and someone goes to patent it now even though he obv did not invent it, will he get a patent?

Since it is very expensive to patent all over the world is there some way you can do something like the GNU license?

So I can say I invented this and anyone can use it however they want and noone can prevent anyone from using it.

And that would be free and hold up all over the world?

[stcredzero]

Patents are largely bullshit. The only thing looking at patents can do for a you as a programmer is to give you a nasty case of brain cloud. A few years ago, I spent a lot of time a few years ago looking at "Internet TV" related patents. Any area that might be hot is patent trolled to death, and this was certainly true for video over the internet. Best thing to do is to ignore it until people start becoming interested in you.

[Create]

"A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors." Bill Gates (1991)

"If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today." Bill Gates (1991)

"The benefit even of limited monopolies is too doubtful to be opposed to their general suppression." Thomas Jefferson, 3rd President of the USA

"I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man." Thomas Jefferson, 3rd President of the USA

"Patents are being used as an offensive measure. [...] If you don't have any patents, you don't have any weapons in your armoury." John MacPhail, Partner, Baker & McKenzie (one of the world's largest law firm)

"Patents are intelligent bombs." Harvard Business Review

"Reback often tells the story of how a team of IBM patent lawyers went to Sun Microsystems Inc. in the 1980s and claimed that the then start-up was infringing on seven of its patents. After Sun engineers explained why they were not infringing, the IBM lawyers responded that with 10,000 patents, they would be sure to find some infringement somewhere." The Washington Post

Intel's [chairman] Grove derides such patent holders for showing little interest in producing goods with their inventions in favor of demanding licensing fees from others. "We call them trolls," he said. The Washington Post

"The nature of software is that it is a writing, an expression of mathematical ideas. The copyright law protects this expression, and it does so without requiring costly and time-consuming proceedings." Douglas Brotz, Principal Scientist, Adobe Systems (1994)

"The government and the money-counters must not lock away from us, our intellectual processes -- not even when we execute them with the aid of symbols on paper, or performances on calculators, or programs in computers."> Jim Warren, Board of Directors, Autodesk (1994)

"It was simply that had the technology been proprietary, and in my total control, it would probably not have taken off. The decision to make the Web an open system was necessary for it to be universal. You can't propose that something be a universal space and, at the same time, keep control of it." Tim Berners-Lee

"Software patenting has run amok." Tim Berners-Lee

"Building up a patent portfolio by engaging in defensive patenting cannot always protect against hold-up." Federal Trade Commission of the USA

"More patents in more industries and with greater breadth are not always the best ways to maximize consumer welfare." Federal Trade Commission of the USA

learn all about it: www.nosoftwarepatents.com

[goelp]

A thing to note is that patents have a life of 20 years or lesser, so in some cases patents would have become void. Probably it is less likely to apply to internet technologies since lot of the internet development took place in the last 20 years.