[stoodder]

Honest question, if I have a software idea and am thinking about patenting it, but then don't (although I've developed the idea), what happens if someone else re-creates the idea and then patents it themselves. Would I now be infringing on their patent?

[redsymbol]

(Am not a lawyer, but am a tech entrepreneur whose job is to somewhat understand patent law:)

Yes, you would, in the USA. If you are not ever sued for infringing, nor asked to pay licensing fees by an agent of the patent holder, nothing happens and it's effectively moot. This is the most likely outcome.

If you are sued/asked to pay, you could try to invalidate the patent (or threaten that) because there is prior art... i.e. your implementation. You can only do that if you can prove that you implemented it, at a specific date sometime before the patent filing. This may not be easy. In fact - and ideally, there is a USPTO officer reading this who can comment - it may be the case that something can only be considered prior art if it's been published in a textbook, tech industry journal article, etc. (Or if there another existing patent for it).

Ideally your evidence is so strong, the patent holder will look at it and decide it's not worth taking you to court (i.e. they believe they will lose, or even risk getting their patent invalidated). Then they back away slowly from you, going after easier prey.

If you go to court for any reason, it's likely to be a long, hard drain on your energy, time and money.

[stoodder]

Awesome, thanks for the reply. I'll take a look a bit deeper, but this really helps a lot.

[Natsu]

If you publish it openly somewhere that a date can be clearly established, you can create prior art that might prevent someone else from getting a patent on it.

Be sure to cover as many of the minor, obvious generalizations or adaptations as you can.