The purpose of this article is to help those who expect to enter the Western markets with a product or technology, be prepared for that black day when you receive a patent infringement claim by mail. If you are counting on success, it is naive to expect that this cup will bypass you. Will not pass. True, it is unlikely to be a bowl. Rather, it will be a big uncouth club. Dubbed patent troll.
True, this story is not expected in every country. In most countries, laws protect society from patenting ideas. Realizing that software does not obey the laws of physics, which means that almost everything can be patented, most countries have significantly restricted the possibility of patenting anything in the field of software. There is, however, one small, but important exception - the United States of America. About this country we will mainly talk.
It is not possible in one article to describe all aspects of the patent situation in the USA. Besides, I am not an American patent attorney, and I don’t know all the subtleties, and if I knew, it would hardly make sense to write about them here. Therefore, we will try to concentrate on the most important, and if questions come up, let's talk about them in the comments.
If the topic is interested, I invite you to deal with it under the cut.
What are the patents
Drawing up a patent and protecting it is troublesome and rather expensive. Historically, patents have arisen as a means of publishing inventions with the ability to retain their rights to use them. Otherwise, greedy capitalists stole other people's inventions and did not pay the unfortunate inventors. Over time, however, the alignment has changed a lot, and now everything looks in such a way that patents more often work for large capital, allowing it to easily demolish small companies from the market that have the audacity to compete with them. With the present value of any, even the simplest, patent litigation of a million dollars, it is difficult to imagine how an unfortunate inventor can protect his rights. Most likely, no way. Unless he works for a big uncle who has a lot of money. Here is such a mutation occurred.
When making a patent application, you need to carefully consider why it is needed. A patent can be useful for three purposes.
- Protective. This is the most reasonable goal for patenting. You patent the present inventions that you actually use or intend to use in your products. If you are attacked, you can present your own patents, which greatly complicate the life of the other side, which will either have to prove that your patents have been issued incorrectly, or convince the judge that, despite having your own patents, you are using his patents. The chances of bringing a patent case against you in this situation are significantly reduced.
- Increase the capitalization of the company. You patent everything that you can patent, even if you have no further plans for applying these patents, but there is a plan to sell the company at a higher price. Each patent increases the value of the company in the eyes of potential investors.
- Attacking. It is your choice if you are going to troll other companies. Such patents are rarely associated with real inventions. A real invention is usually a very specific thing, and for an attack you need something that hits with a broad front to cover the maximum set of options for implementing something. Such patents are also called “umbrella”. They are written in muddy legal language, usually carry a trivial idea, and every time you wonder how it was possible to convince an expert in the patent office that this evidence is an invention.
It should be added that the same patent can pursue two, and sometimes all three goals.
Now, when we have dealt with the types of patents, let's move on to how patent disputes take place in the United States.
Features of patent disputes in the United States
How does it all start?
If you received a registered letter in the mail with the text of a patent claim, then you are already involved in a patent dispute. But this does not mean that you need to urgently look for a million dollars: everything can still do. The plaintiff will send you a copy of the claim, the second copy will be sent to the court. Further, if you are not a big and rich company, your tactics are simple: by all means avoid a lawsuit. Moreover, the other side is also often interested in this. If you are dealing with a patent troll, then he, too, most often does not need large court costs and time spent on hearings. Most likely, they want to quickly get their money and go troll others. But about the goals of the trolls, we'll talk later.
The lawsuit usually contains a simple statement: you violate such and such patents in such and such products. Then you are invited to pay in full all the losses of the patent holder, which is usually estimated at a transcendental amount, and license these patents for the exorbitant money for the future or stop selling the product.
The benefits of patent search
You ask: is it possible to study patents in advance in some area so as not to run up against such claims? The answer is: it is not only useless, but also very harmful. And that's why.
Firstly, if in the process of reviewing a lawsuit it turns out that you knew about the existence of a patent, then in case the claimant wins, the punishment will be many times more severe than if the court decides that you violated the rights of the claimant without knowing the patent. In such cases, the court is sometimes surprisingly lenient. How does the court know that you knew about the patent? Under American law, you will be required to submit your entire internal correspondence to the court upon request. Any indirect indications that not all correspondence has been provided or some part of it has been deleted threaten you with administrative prosecution rather than administrative. Therefore, it is better not to joke with such things.
Secondly, there are a huge number of “sleeping” patents that will never be used by anyone against you simply because they were created as defensive or to increase the company's capitalization. And an attempt to bypass each of these patents can lead you to a dead end.
Thirdly, attacking patents are deliberately called in such a way as to maximally hide them from the public for the time being. No wonder they are sometimes called "patent mines." Thus, the most dangerous patents you will never find.
Well and the last: patent search is quite expensive pleasure.
Patent Dispute Costs
Now about the costs of patent litigation. I already wrote that the trial of one patent lawsuit costs from a million dollars and more. The situation is complicated by the fact that even if you won a lawsuit, the law does not oblige the other party to compensate you for the legal costs. Based on the direct purpose of patents, it looks reasonable: if the poor creator-inventor is afraid that, having failed to prove his rights, he will also have to pay rabid expenses for smart lawyers, he will never decide to sue the evil capitalist. But in practice, this rule turns out that patent trolling is regularly used to ruin companies or blackmail in order to reduce the purchase price of a company.to be continuedAram Pakhchanyan
Vice President, Director of Data Entry ProductsUPD:
Now the author of the article on Habré: aram_pakhchanian