| As someone who has dealt with this I suggest you figure out a way to avoid the patent. Read through the claims, figure out what combination of features they have patented and then change your product to avoid those features in that combination. You likely can either do something more advanced or something less advanced -- if you have the choice do the more advanced solution as you are then likely pushing your product even further. Fighting patents is for rich, established companies. You do not have the luxury. You should change your product immediately to avoid infringement, or even close to infringing. If you do this you can avoid damages/claims against you. Because you didn't know you were possibly infringing, you can avoid all claims/damages by immediately changing your product. When you respond to them, you should say you didn't realize you were possibly infringing as you were not aware of the patent, you should say that you do not believe you were infringing, but anyhow you have modified your product to clear up any possibility of claims of infringement going forward. You do not want to admit any guilt in anyway (actually the rule is NEVER admit guilt, always claim you believe you are not infringing), and you want to get away from these people because they are not worth your time. But if you do need to use this tech, you should try to license it, but while claiming you are not infringing and there are alternative methods you can adapt. This gives you the most powerful stance. Make sure they understand you are very small and thus not worth dragging this out. Offer them something for a one time fee if possible and get than done and move on. But avoiding the perception of infringing going forward is best. |
The parent’s advice assumes the players are reasonable people acting in good faith. In the case of patent trolls, they are often not acting in good faith. Most of the allegations are not good faith interpretations of the patent. There is no “perception of infringement” to begin with. They just want a quick payout and found a cost-efficient way to state a claim against a widely used technology so that they can threaten and file lawsuits in volume. Instead, find a good patent lawyer or a pro bono resource (like EFF or a colleague with experience) that can give you resources or advice to quickly dispose of it cheaply (or even for free), if you cannot afford fight it. Sometimes, it can even be cheaper to hire an excellent patent lawyer that can win the case early than it would be to pay off the patent troll. I have written many a response to a patent licensing demand letter, knowing exactly what to say for much less than settling, where they disappear and never sue. And if they have sued, sometimes they disappear as soon as lawyers they do not want to be up against show up in the case.
In the instance of a good faith claim by a patent owner (even if wrong), there will be enough money at stake that it would be worth the cost to consult a good patent lawyer before doing a single thing.