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The scope of this question is intended to be global in nature: techniques (approaches to solving a problem, such as the use of a layer palette), operations (actions that the software or its user can take, such as using a paint bucket tool to fill in a selection or otherwise bounded area), etc. If the development process comes into play, such as Person A saying "We need to implement this one cool feature in Software X" and perhaps any study of that functionality via decompilation, hex-editing, etc. (vs. a more genuine, independent process of imagining functionality or writing up the spec), then that would be appropriate to mention.

I am in the process of creating a substantial application, and I don't know how much of a problem software patents will be. I'm of the impression that no one can patent a "paint bucket" tool (though I wouldn't know the legal justification behind why that can't be patented), but perhaps if you stray much further from that, you'll get hit with a lawsuit? I really have no idea!

In my case, I'm not even looking at competitor's software for this very reason. I did sit down with someone who uses software that is currently on the market long enough to know that I can easily demolish it, but I would just consider that market research. The only things that excited me during that little demo session were instances where I would dream up some functionality and his response would be "Yeah, that would be really useful, and no, this software can't do that." There was no "I really need to copy that feature!" because, well, the application was garbage for the most part, despite it price tag.

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On what grounds are people voting to close this question? The FAQ for this forum lists questions about "freelancing and business concerns" and "software licensing" as being appropriate, and this question is not a duplicate either. –  Michael Jul 22 '12 at 20:56
    
This question cannot be global: software patents are specific to only a small set of countries. –  mouviciel Jul 25 '12 at 7:37
    
@mouviciel Whilst I agree with what you've said, the reach of those software patents is global. Just look at all the Apple vs Samsung stuff that's been going on. The patents that Apple hold (whether they are justified, real or not) have had an affect on what consumers can buy globally. Germany, The UK, The US, France and Canada to name a few countries where one company have taken the other to court over patents. Note: I mean to be neutral in this post –  Jamie Taylor Jul 25 '12 at 7:57
    
Over patents yes. Not over software ones. –  mouviciel Jul 25 '12 at 8:01
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Isn't it kind of funny that most of these patents were granted recently. I mean software has been around since the 40's, yet the shell companies that sue developers claim to have invented the abstract names for the features that have been around since the 70's and 80's within the past 10 years. How has no one mentioned this? Is this not a stable argument in court? –  Jamie Taylor Jul 25 '12 at 8:08

3 Answers 3

up vote 6 down vote accepted

Unfortunately, the current state of the US patent system is such that people can (and do) get granted patents on such things as "a paint bucket implemented on a computer". And other people buy up these dubious patents and go around demanding license fees and suing people / companies who don't "roll over".

And the problem is that any non-trivial program may (might) incorporate stuff that is potentially covered by tens, hundreds, even thousands of software patents.

And worse still, if you are aware of the existence of a patent and you go ahead and incorporate the stuff it covers, you may be liable for triple damages!

So one common bit of advice that lawyers give to programmers is DON'T go looking for patents.


FWIW, this is one reason I'd never set up my own company to write software for sale.


This is the kind of thing that should worry you ...

http://gigaom.com/mobile/another-app-maker-sues-to-stop-lodsys-patent-troll/

(Read to the bit about why Lodsys is "infamous" ...)

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After initially getting no answers to this question, I looked into the issue for several hours and this is exactly what I found. The experts said that nearly everything you will ever write is patented and that it is better to not look, as it will often cost you more to attempt to "follow the rules." What an absurd mess. –  Michael Jul 22 '12 at 21:03
    
Yes, when I got my first job after graduation we had the legal talk. It boiled down to "Never browse for patents unless you're a Patent Lawyer". –  James Jul 22 '12 at 22:51
    
"FWIW, this is one reason I'd never set up my own company to write software for sale." what an absurd statement! Let's face it, the chances of being sued are extremely remote. Even if you happen to infringe on a patent, then the chances of the company finding out are pretty much slim, unless you are a major corporation. If they do, well that is what business insurance is for. Feel free to not set up your own company, but you are shooting yourself in the foot by doing so. –  Gavin Coates Jul 23 '12 at 11:29
    
So you haven't heard about the webstore owners and the app developers who are being sued by patent trolls? Oh and of course, the more successful you are the more likely you are to be targeted. –  Stephen C Jul 23 '12 at 12:21
    
@GavinCoates direct quote form the article that Stephen C linked "[LodSys] has sued or threatened to sue not only large companies like Adidas and the New York Times but also hundreds of one- or two-person app makers" –  Jamie Taylor Jul 25 '12 at 8:03

Two most important things you should realize:

1) The best way to win a war is to deny it. Almost everything is patented. Don't get involved in patent mess, you can't win it unless you a multibillion corporation (and even in this case the success is random).

2) Patents are territorial. You can avoid patent infringement by not registering your business in USA, Australia, Japan (and possibly other countries) which recognize US patents. It might also be required to remove your servers from those countries (don't host there). If you do so patent trolls can do nothing short of scaring you with US courts decisions (which as an overseas business you won't care about).

That's pretty much it. You can write a more elaborate answer in a thousand words but it's the essence.

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By "deny[ing] it", do you mean that I should deny that I have infringed (it would appear as though it is impossible to avoid infringing, so presumably, I will indeed infringe)? Or simply ignore anything in the mail about infringed patents? Or that I should call into question the validity of patent laws when taken to court? –  Michael Jul 22 '12 at 21:32
    
The denying part was a bit philosophical. Patent wars are a battle of giants. There is no place in there for a little man. Most likely you won't have funds to protect you from even the first of the ridiculous claims submitted to a US court. You should understand that and not plan a combat you can't win. There are other ways. –  User Jul 22 '12 at 21:59
    
Whether to ignore a mail (in which case the US court system assumes you plead guilty or something) or how to draw a response ask a lawyer. Perhaps send a canned response that you did no patent infringement since you're not doing business in the US, and therefore a US court has no jurisdiction over you. –  User Jul 22 '12 at 22:03
    
I personally heard of no cases US patent trolls going after overseas companies which do not have a presence in the US and do not sell to US customers. They do try to scare people from time to time but there is pretty much nothing they can do. They only sue to get money from you and you being far away from their jurisdiction makes this a virtual impossibility, therefore no point to bother. –  User Jul 22 '12 at 22:04
    
What if I set up a foreign company to sell the software in the US? I'd guess I'd have to play by the patent laws then, eh? –  Michael Jul 23 '12 at 5:29

The spirit of patent law is that the subject of the patent has to not be obvious to someone skilled in the field. So I go with the idea that (not being Einstein) anything I can dream up is covered. As applied, current patent law doesn't come close to this.

The fact is, that once you have deep pockets there are both trolls who will try to pick them; and well respected software companies who will attempt to use patents as a bludgeon squelch competition.

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