[njl]

If you violate a patent unknowingly, you are liable for damages. If you violate a patent you know exists, you are liable for treble damages.

The only rational thing for someone who actually makes stuff to do is to not read any patents, ever, as a matter of general policy.

This might not be the socially responsible answer; we should all be fighting the patent madness in our industry. It is, however, the most logical course of action. It puts the lie to the whole "promote the Progress of Science and useful Arts" thing, but that's where we are.

[dctoedt]

> If you violate a patent you know exists, you are liable for treble damages.

Not quite. First, in cases of willful infringement, the judge can --- but need not --- award up to treble damages. Second, a patent owner seeking to prove that infringement was willful must show, among other things, either:

(1) that the accused infringer knew, not just of the existence of the patent, but of an objectively high likelihood of infringement of a valid patent;

OR

(2) that this objectively defined risk was so obvious that the accused infringer should have known it.

If the accused infringer puts on a reasonable defense, it often negates the "objectively high likelihood" element.

See generally http://www.jdsupra.com/legalnews/standard-clarified-for-will...

NB: Issued patents are presumed valid until proven otherwise --- and according to the Supreme Court, that proof must be not merely by a preponderance of the evidence, but by clear and convincing evidence. That was the Supreme Court's holding in last year's Microsoft v. i4i opinion; see http://www.patentlyo.com/patent/2011/06/microsoft-v-i4i-supr...

[spolsky]

It is definitely true that a lot of companies over-protective legal departments have persuaded their engineers never to read patents.

I don't think that you should optimize for the case where you've actually lost a patent suit. First of all, that's a pretty rare case. But more importantly, it's cowardice. It's the moral equivalent, in my mind, of carefully crossing to the other side of the street when you see the neighborhood bully approach. Yeah, it's "the most logical course of action," but the better course of action is to get your own gang together and shut them the f* down!

[njl]

We're not going to shut them down by invalidating them one at a time. You're not plugging a few leaks in a dike; you're trying to splash the ocean back with teacups.

[d2vid]

How many teacups we talkin here?

In 2011 there were about 500K utility patent applications: http://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm Many of those are not software related.

There are about 1.3M programmers in the US alone: http://programmers.stackexchange.com/questions/19720/where-c...

So 20 teacups each to have each patent looked over 10 times? Sounds doable to me.

[fpp]

some patents take days to review - some have to be reviewed in context with other patents etc.

So maybe 200 teacups each but the direction is definitely right.

[d2vid]

I just went on to AskPatents and tried my hand at it: http://patents.stackexchange.com/questions/197/prior-art-for...

I'm not doing anything close to as good a job as a patent examiner would do, but with about an hour of work I (hopefully) was able to start pointing to some prior art that could get an examiner quickly up to speed on what the state of the art is.

I agree the amount of work involved to comprehensively invalidate a patent would be days - hopefully a group can do the same with shorter time contributions.

[fpgeek]

Unless the rules are different for this process, every piece of prior art that you point to now that an examiner doesn't agree with / understand is a piece of prior art that can't be reused further down the line (e.g. in a trial).

[Permit]

>USPTO patent examiners will be able to search the site to find prior art they may have missed; the USPTO, complying with the new law, will also provide an online system for submitting prior art. We’re also integrating with Google Patent Search, so every patent application on Google will include a link to discussion on Stack Exchange. Google has also implemented an algorithmic prior art search utility that will be helpful to site participants.

I believe the site isn't so much intended for people trying to find out whether or not their idea is patented as it is for the USPTO to easily find prior art before granting patents.

[dfc]

Respectfully, I have to say that your "rational strategy" is a terrible suggestion. This strategy only makes sense if your desired goal is to reduce treble damage risk. Moreover it completely ignores the risk of devoting a ton of resources to developing a product that is already protected by a patent.

[njl]

They're all protected by patents. All of them. I can pretty much guarantee you that any of IBM, Microsoft, Google, Oracle, Intellectual Ventures, and many others have sufficient patent coverage to be able to sue you for anything you could possibly build that involves software in any way.

[edited to scope it to software]

[dfc]

You do realize that the world is bigger than just software development?

[sirtaptap]

Well, this is a site for developers. It's reasonable to assume one's talking about "building" software or something tech related.

[nitrogen]

You do realize that software development permeates everything in the world?

[dumb_dumb]

Doesn't mean they're going to win.

[nitrogen]

Lawsuits aren't always about winning. Sometimes they're about bullying and showing dominance. Sometimes they're about stalling a competing product while you finish your own. In the case of a big company or troll going after a small company, drawn out legal battles are used to bleed the company dry until they settle or go bankrupt.

[roc]

> "Moreover it completely ignores the risk of devoting a ton of resources to developing a product that is already protected by a patent."

That's what the legal advisers (who recommend this strategy) are for. You bring them a concept or prototype, they do clearance/patentability checks and make a recommendation -- not only in whether to proceed, but potentially including advice on how to proceed in the most legally advantageous manner.

(Your specific invention may be patentable even when generalized to cover additional uses -- indeed much of the value of good patent counsel comes from their ability to get you the most-broad patent possible.)

[dumb_dumb]

They'll be more measures coming from the USPTO on the issue of software patents soon, if I'm not mistaken. See their website for details.

The advice you give is like an urban myth. It's passed around for many years.

It assumes there's no alternative but to infringe, so you might as well minimize your potential losses.

Maybe it's better to read patents, design around them and not infringe. That seems like the most rational course of action.

Are treble damages automatic? Or are they are discretionary?