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Can anyone point me to an article or an informed discussion about US software patents affecting a non-US company who is selling their products on an American app store/marketplace?

My company has several products on both Apple's App Store and Android's Marketplace, all of which are available for sale in the US. We are however based in Europe and have no assets registered in the US.

Assuming we had a product worth enough to attract patent trolls, should we be worried? We have not researched any relevant patents we might be infringing because such research would be too expensive for us. Reading articles about US patent law it seems that being able to catch all potential patents is unlikely anyhow.

I realise this site is frequented by programmers and not by lawyers, but a good external reference would be much appreciated.

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You're best bet has to be to ask a lawyer not a bunch of random people on the internet. –  ChrisF Aug 9 '11 at 9:56
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The fact that this question even had to be asked is testament to how the archaic US patent law and patent trolls are hindering economic progress. –  maple_shaft Aug 9 '11 at 11:11
    
@ChrisF That's why I was asking for an external reference - I read a lot of internet sources that touch on patent law but I haven't seen this dilemma discussed anywhere and I'm sure we're not the only company interested in the matter. We've had no need of lawyers until now and I guess we aren't quite prepared to go looking (and paying) for one just on account of this question. Also, do we consult a local or an US lawyer? (thanks for the title typo edit btw :)) –  gregopet Aug 9 '11 at 11:42
    
There is a petition going on about ceasing to issue software patents here. –  Jose Faeti Sep 24 '11 at 14:22

3 Answers 3

Naturally IANAL but Lodsys have gone after Rovio who are Finnish and have their principal place of business in in Espoo, Finland, and Square Enix who are British and headquartered in London (these are as listed on the amended complaint so they're not going after US subsidiaries of those companies).

Obviously it needs to be worth their while to go after you so if you're only turning over a few thousands of dollars a year (or a few tens of thousands of dollars even) they probably won't bother, but if you did hit it big your lack of presence in the US wouldn't protect you.

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We are in the same situation, and the best thing is indeed to ask to a specialized lawyer.

Meanwhile I found some recent articles about this topic, which my company is also worried about.

How the US patent mess affects European tech and startups - August 13, 2011

App Developers Withdraw From U.S. As Patent Fears Reach ‘Tipping Point’ - July 16, 2011

The situation it's still not clear to me, but it's also difficult to tell which patent you may have troubles with.

Meanwhile, beware of cross promotion too.

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Thanks for the links - they do not go into specifics of how the trolls might get to you legally, but (as Jon Hopkins also noted) the number of European companies targeted in them (and in various countries) by itself indicates that they probably have some strong attack vectors. –  gregopet Sep 9 '11 at 6:18
    
Indeed. I wasn't able to find anything more specific, and the situation is not clear even for our lawyers. It's really a shame how much small and startup companies are suffering from this. –  Jose Faeti Sep 9 '11 at 6:21

IANAL, but my guess is that if after receiving a letter alleging that you have infringed a US patent, you stop selling your app in the US, you'll be fine.

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Unless they come after you for their loses on every one of your sales. Just because stop the infringment does not mean you didn't infringe on thier patents, you can either play by the rules in your target's court, or change the court and only sell your product in a court where you agree with the rules. –  Ramhound Aug 9 '11 at 11:34
    
One of the things I'd like to know, assuming somebody wanted to get damages from us, where could they even sue us as we have no US presence? Go through Apple/Google and demand a cut of our revenues, or go through our local courts (which would probably be a deterrent to patent trolls looking to keep litigation costs low).. –  gregopet Aug 9 '11 at 11:45
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@gregopet they could sue you in a US *typically East Texas) court and get an automatic win when you don't show. Then they would normally demand money from you before launching an action in your local jurisdiction. They may not actually end up taking you to court in Luxembourg or wherever, BUT they figure you would rather pay than suffer the damage to your business of being in court. It's normally fairly cheap and easy to simply register a civil case against someone. –  Martin Beckett Aug 9 '11 at 15:40
    
Thank you, that's an interesting attack vector and it seems very appropriate for patent trolls. –  gregopet Aug 9 '11 at 19:28
    
They still need grounds on which they can freeze your assets or fine you, don't they? If you don't go to U.S. they can never enforce it. If you do, they might handcuff you at the airport, though, I guess. –  Coder Sep 8 '11 at 14:00

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