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If a client requests that a particular feature is added into their website software, who is responsible for searching and recognising that a patent royalty has to paid?

  1. client
  2. web developer

This question is aimed at freelance web developers.

When a client says (for example) add a shopping cart to my site. This is a relatively straightforward task, but who is responsible for searching for and licensing patents?

I was talking to another developer the other day and this came up. It sounds like an awfully large burden to be required to take on. Especially when it comes to offering clients quotes. When a client makes a request what is the general process for the freelance web developer?

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I would guess someone with patent experience should do the search, maybe a patent lawyer. And, of course, the client should pay. –  FrustratedWithFormsDesigner Aug 8 '11 at 19:59
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@Aaron I have been reading a lot about the mass growth in patent lawsuits. There are so many patent infringements over very obscure and seemingly insignificant pieces of source code. How can a freelance web developer be expected to check patents for every snippet of code (both client and server side)? –  Lea Hayes Aug 8 '11 at 20:04
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The developer is obliged to do what's in the contract. They need to do patent searching if and only if that's specified in their contract. –  Jerry Coffin Aug 8 '11 at 20:25
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It may not even be advisable to do a patent search at all. Pretty much every software infringes some patents. And knowingly infringing increases the cost you need to pay if you lose the patent suit. So I think the only thing you can to write a contract that specifies who should take the risk. –  CodesInChaos Aug 8 '11 at 20:39
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I'm not a lawyer, but I think there is a rule requiring for some sort of "good-faith" attempt to inform someone of a patent violation before a lawsuit. This could be a "cease-and-desist", request for licensing, etc. that should give you the opportunity to discuss the issue with the patent holder and figure out the best way to keep your code on the up-and-up. –  Eric Hydrick Aug 9 '11 at 15:59

1 Answer 1

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Well really it comes down to who is taking the risk. If there is risk that something is violating a patent then the people funding the effort should be aware of this.

That being said, as a freelancer, if you do not cover your tracks they could blame you.

It is up to you, you can build the feature and have enough paperwork with them signed saying you are not responsible (or something of the sort), or you can bring it up to them directly and say hey just so you know... XYZ or else ABC. They might ignore it, they might change the plan, or they might pay the dues.

There is a balance here, but the company who is funding and branding the effort is going to be held responsible, and then the legal department will blame the manager and the manager will blame you.

It's all about communication, communicate the risk and clear yourself of it, leave it up to them whether they want to take the risk of not paying a royalty.

However I see how this can be a very sticky situation, because who knows what kind of patents are out there? Now I'm scared a little too... however in the worst case scenario at least they might get a cease and desist before actual legal action is taken. "We had no idea" will probably not be good enough, but it might be.

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IANAL, but honoring cease-and-desist letters seems to have defused patent suits in my news-watching. –  Michael K Aug 8 '11 at 20:08

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