How to protect yourself from being sued by patents?

Question

I've had a few software ideas before that could probably be patented.(decided not to pursue any of them, however). Basically, I don't want these ideas patented though. I don't care if someone else implements them, I just don't want to get sued later by some patent troll who patented the idea I had and implemented 5 years ago.

Would posting your idea to public websites, and using the poor man's patent technique ensure that even if someone else patents your idea, you have protection from being sued, and possibly the ability to invalidate their patent?(assuming the reform bill doesn't pass)

Answer 1

As someone who studied to take the patent examiner test, several of your presumptions are slightly faulty.

Would posting your idea to public websites, and using the poor man's patent technique ensure that even if someone else patents your idea, you have protection from being sued, and possibly the ability to invalidate their patent?

The certified mail trick doesn't work.

Prior publication could be a bar to issuing a patent, however that doesn't stop the USPTO from issuing patents and letting the courts decide the merits of the case (which appears to be the policy since the mid 90s).

Publishing online won't necessarily help as your website might disappear in the time between when you put it up, and the lawyers start circling. One might take the preventative approach to using DMCA take-down notices to erase your alleged prior publication.

The fee for provisional patents is $110 for "small entities". You may want to contact a patent attorney to see if filing and then abandoning a provisional patent application would meet your requirement to make it so that "patent trolls" can't subsequently patent your invention.

I don't care if someone else implements them, I just don't want to get sued later by some patent troll who patented the idea I had and implemented 5 years ago.

There have been a number of submarine patents, but changes in US law in 1995 mean that the patent runs from the application date, not the date issued. In my opinion, the most notorious one was 4,942,516 which was filed in 1969, and the Patent Office didn't issue the patent until 1988 (they kept sending requests back and forth, which delayed the issuance). Because the application was "in process" this meant that any time someone else tried to file for a similar patent they were autorejected for a patent. This lead everyone in the industry to think that the concept of a single chip microcontroller was unpatentable. Until it was issued in 1988 and the submarine could have sunk the entire electronics industry as single chip microcontrollers are used in almost everything (your microwave, your phone, dozens in your car and so on). Under the new laws, the patent would have expired before it was issued. Under the old laws, the industry had 18 years to develop and mature before the lawyers started looking for 9-digit royalties from semiconductor manufacturers.

That "troll" might have already filed an application for a patent, but it hasn't been issued yet. In this case, you may think you published an article in May 2011, but since the other person filed in 2010, your publication was not prior to their patent application.

Answer 2

You could move your company out of the US, and into some country in Africa, Central America or the Caribbean. In addition to the comfortable climate and potentially better tax conditions, you'll have the benefit of having judges who have little if any interest in enforcing patent laws from outside of their jurisdiction.

Answer 3

If you're concerned that you as a developer is going to be sued about your implementations then don't worry. Trolls typically sue only if they smell money. You as a "poor man" do not qualify. Anyway it's usually a company you worked for that is at risk. You as an employee is typically (but not always) protected.

If however you yourself run projects which utilize the ideas in question then it is recommended that you register an LLC somewhere far far away from the US and other countries which support software patents and run your projects under its name. That will provide enough barrier from many trolls. For instance European courts do not generally find US legal hassles all that amusing. The courts of some little country in the middle of nowhere might not give a damn about US patents at all.

Answer 4

From my limited understanding, previously published works cannot be patented. If you just want to be protected from some else patenting your idea in the future, and have no care about IP protection, put it into an appropriate open repository or code snippet store (or two) such as source forge, bit bucket etc, meaning you have published it, hence, no patentable. If you don't want to share it, you could use a private online (revision controlled) store, so that you can prove when you created the work, with an independent third party to back up your claim, however, that would be more work in the event of being sued. Imagine a letter from a Lawyer, suggesting patent infringement - you email back with a link on an open site proving prior art- he will back off as soon as he sees that not only you, but everyone else in the world, has the proof they need to defend a patent infringement. He will then move onto other targets, hoping they are not aware of the original work.

If you want certainty, you need to engage a lawyer.

Answer 5

Get 10,000,000 Americans to sign a petition that software and all other information cannot be patentable as per our Constitution. Such a massive restriction on communication and learning is terribly stifling, and Congress has no right to create a law that does not serve the general welfare, common defense, etc, and which stifles progress in the art.

And what kind of low inventiveness bar is that ("non-obvious to a person having ordinary skill in the art")? We are talking about one person with money being able to tie down collaboration by millions. It's absurd. Software is infinitely reproducible at $0, 0 seconds, 0 energy. Patents make no sense when you don't need protection against billion dollar firms. Patents should NEVER EVER be used to restrict a person or a small firm. Are patents to help the "little guy" or to hurt the little guy?

Also, write down how many patents you would otherwise create and how easily most open source projects could be blocked from progress (eg, because of the low bar allowing wealthy average killed folks to write a broad description of where that project likely would go anyway).

Patents are costs on the people who truly create things. This is an attack on the freedom to think and create written works and information bits to share with others and leverage for small businesses and consumer use. This is an attack on independent free speech. .. and it's an attack on the vast majority of us who don't have millions of dollars to use to patent our many "new" ideas that pass that low inventiveness bar, nor to defend from such unjust attacks.

Oh, and patent examiners are not reading the hundreds of millions (or billions) of existing open source code lines. They are not analyzing that. They are granting monopolies without knowing how much of the prior art is unknowns to them. They are making a mockery of society and of the Constitution by allowing software to be patented under these conditions.

I am considering walking against software patents (and for open source). It only takes an hour each day to reach many people daily and let them know how they hurt from biased and stifling software patents.

PS. Another defense idea might be to ask your employer to support open source software (with $) since patent attacks against such a public good and source of knowledge and empowerment is a real attack on our Constitution.